The Volokh Conspiracy

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Free Speech

Prof. Jeffrey Rosen on Musk and Twitter


Jeffrey Rosen, a law professor at the George Washington University Law School, President of the National Constitution Center, and former legal correspondent for The New Republic, has an essay about this at The Atlantic; an excerpt:

Elon Musk, in his effort to buy Twitter, signaled that under his ownership, the company would allow all speech that the First Amendment protects. "By 'free speech,' I simply mean that which matches the law," he tweeted on April 26. "I am against censorship that goes far beyond the law."

Many commentators were quick to point out that, as a private company, Twitter is not required to follow the First Amendment, which applies only to federal and state governments. And Musk has further been criticized by those who fear that harmonizing Twitter's content rules with First Amendment doctrine would lead to an explosion of hate speech, misinformation, and incendiary statements, content that Twitter currently moderates.

This deregulatory approach would make Twitter an outlier among the social-media companies; at the moment, Twitter, like Facebook and Google, has chosen to adopt content rules stricter than First Amendment standards. Facebook, for example, prohibits "hate speech" or "attacks," which it defines as "violent or dehumanizing speech, harmful stereotypes, statements of inferiority, expressions of contempt, disgust or dismissal, cursing and calls for exclusion or segregation." By contrast, the First Amendment generally protects hate speech unless it is intended, and likely, to cause imminent injury. Twitter's current definition of "hateful conduct," although narrower than Facebook's, still falls short of First Amendment standards.

But Musk's position is, in fact, convincing. Although private companies are not required to follow the First Amendment, nothing prevents them from doing so voluntarily. And in Twitter's case in particular, there are strong reasons to believe that the First Amendment should presumptively govern. All four of the main principles that have historically guided the Supreme Court in interpreting the First Amendment apply just as powerfully to social-media platforms as they do to governments….

Rosen discusses the reasons for this in more detail; see his essay for more. And I'm inclined to agree with him about this, given Twitter's size and importance to public debate (at least as to decisions to ban accounts on the grounds that they express harmful views).

Some of the details of the policy may need to differ from the First Amendment rules, especially when it comes to replies posted on others' Tweets (as opposed to the contents of Tweets that are read only by people who deliberately follow the author)—to take the clearest example, it likely makes sense for Twitter to try to block spam that may not be legally punishable but that may seriously interfere with Twitter conversations. But following the general thrust of the First Amendment seems like a valuable approach, for the reasons Prof. Rosen mentions.