Elon Musk and Free Speech (Continued)
What are Elon Musk’s Real Intentions for Twitter?
Welcome to the Civic Way journal, our quick take on the relevance of breaking news to America’s future governance. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving public agencies.
Elon Musk’s Political Journey
Judging by Elon Musk’s use of the above diagram to illustrate his political journey, he is not a cutting-edge political thinker. Of course, with his staggering wealth, he doesn’t have to be. And, under normal circumstances, the rest of us would likely find the diagram as dull as a mattress tag.
So, why should we care about Musk’s politics? The short answer is that he is buying one of our largest social media platforms—Twitter—and has signaled his intent to align its content moderation controls with his own views. This is a circumstance that is anything but normal.
And what are Musk’s politics? He fashions himself an ex-liberal forced to the center-right by “woke progressives.” He claims he “supported Obama” before the Democratic Party was “hijacked by extremists.” In 2014, he called himself “half Democrat, half Republican.” In 2017, he left Trump’s business advisory council to protest our withdrawal from the Paris climate accords.
What about those helping Musk finance the $44 billion Twitter deal? Marc Andresseen, co-founder of a prominent venture capital firm. Sequoia Capital, the massive venture capital firm. Oracle founder Larry Ellison. The Qatar Sovereign Wealth Fund and Binance, the huge Cayman Island-based cryptocurrency exchange. Most have ties to right-wing donors. None would find fault with Musk’s diagram.
To what extent (if any) is Musk’s move part of an ambitious right-wing strategy to exploit the free speech clause for political purposes?
In 2010—in the name of free speech—the Supreme Court invalidated some laws enacted by Congress to minimize the impact of dark money on political campaigns. The Court’s Citizens United ruling freed donors to anonymously exert greater control over politics. The Court also has exploited the free speech clause to attain other ends (e.g., banning mandatory union dues) and is poised to do so again in the upcoming 303 Creative LLC v Elenis case (involving the right of a self-described Christian to refuse service to same-sex couples).
Of course, this doesn’t necessarily mean that Musk’s Twitter takeover is part of some broader plot. Sure, despite their inconvertible success with social media, right-wingers have complained about its liberal bias. And, sure, Musk’s announcement sparked elation in right-wing circles. The ever-vigilant Senator Cruz, for example, called it “the biggest development for free speech in decades.”
Assuming Musk’s intentions are honorable, what will he do? For starters, he will initially weaken Twitter’s content restrictions. Like others, Twitter has a more restrictive content policy than the First Amendment. This policy led to two decisions criticized by the right, the New York Post’s suspension for tweeting credible Hunter Biden stories and the permanent de-platforming of Trump.
In hindsight, the New York Post decision seems mistaken. However, the Trump decision deserves another look. On January 6, 2021, Trump told a crowd, “If you don’t fight like hell, you’re not going to have a country...” Hours later, that crowd raided the Capitol. Twitter decided that, with his Twitter account, Trump might incite more violence in the last days of his presidency. Given the risks, de-platforming Trump was a prudent act.
Musk may believe that Twitter’s decision to de-platform Trump violated his free speech rights. If so, he is confused. De-platforming someone who exhibits the intent and means to incite imminent violence is entirely reasonable even under the First Amendment. De-platforming them permanently, long after the threat has receded, is less defensible. Musk does not appear to see the difference.
So why is Musk raising the free speech issue? Is the First Amendment even relevant? Not legally. The First Amendment only applies to government, not private firms. Corporations are free to adopt more restrictive standards. Most US media are privately-owned, and most—especially the established outlets—use more restrictive standards like veracity, reliability and decency.
Does Musk understand this distinction? He may, but his public statements thus far conflate First Amendment protections with more restrictive private enterprise standards.
Should Twitter apply free speech standards to its content? Musk’s vague “legal match” policy seems superficially appealing, but does it really make sense for a large social media platform like Twitter? Let’s return to Justice Brandeis for guidance.
“If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” – Justice Brandeis
Brandeis believed that government should promote free speech, if “there be time to expose … the falsehoods.” While he was not referring to private enterprise, his words may carry some relevance for corporations like Twitter.
The large social media platforms are designed to add (and keep) users. Their “enrage-engage” features, like heat-seeking algorithms and handy like/share buttons, spread facts and falsehoods with astounding speed. Without guardrails, will social media platforms have sufficient time to temper the spread of dangerous content or “avert the evil” noted by Brandeis? Not likely.
So, here is the question we should be asking: Are there better ways for social media firms to reconcile free speech rights with corporate obligations to democracy?
Some contend that we cannot protect people from disinformation and their own gullibility. That only debate can resolve our political disputes. That citizens have a duty to sort fact from fiction and think for themselves. Such arguments make sense in a perfect world, but not the world in which we live today.
We are all experiencing social media’s growing pains. Its technology distorts its impact. It spreads content with lightning speed, but struggles to moderate it. And it faces daunting challenges—distinguishing valid domestic sources from AI programs, bots and foreign agents, keeping its users engaged and—perhaps the toughest of all—overcoming the limited civic education of its users.
Since our democracy may depend on getting this right, we should move beyond the tiresome left-right political arguments. We should explore constructive ways to navigate this transitional period for social media. Instead of focusing solely on policing harmful (or merely moronic) content, we should urge social media firms to redesign their platforms. And we should invest in an informed citizenry.
Better, transparent algorithms. Rigorous user verification. Objective, measured content moderation. Reasonable “Like” and “Share” limits. Quicker harassment responses. Fairer appeals processes. Life-long civic education programs. These are just some of the ideas that we should explore.
Will Elon Musk find a way to perfect Twitter’s place in the public square or will he make changes that Senator Warren calls “dangerous for our democracy?”
Time will tell. But, if Musk gets this wrong, there will be little choice but to strengthen our oversight of social media or, more dramatically, restructure it altogether. If it is not too late.