The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.

NEXT: Sign Restriction That Excludes Holiday Signs Is Unconstitutionally Content-Based

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I like how the left which has banged the drum on business freedom for this and only this area for years is now scrambling to find ways to bully Twitter into censoring again.

    1. "...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)."

      Could Twitter and other social media platforms be utilities as the phone and the electricity are?

      1. There's no reason for them to be utilities. You can't have 7 different companies providing electricity to your house; you'd run out of space on the power lines. So we let the government grant a monopoly in return for increased regulation. But you *can* have 7 different Twitters.

        1. But you *can* have 7 different Twitters.

          And people can live happy, productive lives without ever using anything like Twitter. Doing without electricity in the modern world is a lot more difficult.

          1. If you have a businees, it is the only place to market it now. It is the only way to send a message to a lotof people.

            There are 7 electric companies, phone companies, trash removers. None can refuse you service due to your opinion.

            1. If you have a businees, it is the only place to market it now. It is the only way to send a message to a lotof people.

              Really? The only way? I find that kind of hard to believe given that I don't use Twitter and yet I can still find out information about a business and its products when I look, and I still get tons of advertising from businesses in other formats.

              I find it far more likely that you are overstating its size and influence because you want it to be forced to carry views you agree with.

            2. If you have a businees, it is the only place to market it now. It is the only way to send a message to a lotof people.

              "What is television, radio, newspaper, a website, direct mail, and a dozen other social media sites, Alex?"

        2. You can have different companies provide power - Texas currently does this, and I think a few other states allow switching power companies, too.

          They no more require 7 sets of power lines than you require 7 roads to your house in order to purchase from 7 different online stores.

          1. Similarly, it has long been established that you can actually have multiple cable companies serving the same area; We have three on my street.

            You could have competing 'twitters', and the left deployed considerable effort to make sure any alternatives would be crushed.

            But they did deploy that effort, and the reason they're going nuts over Twitter is that it's already too big to easily destroy if it stops censoring.

    2. Are they, though? I'm not seeing a big movement to prevent this by the government, just criticism of Musk.

      Or did you mean that twitter partisans turn out to have no principles, because that's not really news.

    3. Bullying is the reason we are here right now.

      at the moment, Twitter, like Facebook and Google, has chosen to adopt content rules stricter than First Amendment standards.

      If you can call Congress amd every Democratic presidential candidate at the debate calling on wiping out section 230, opening them as a target rich environment for lawsuits, decimating these trillion dollar companies' stock value by hundreds of billions, as freely "choosing" to censor harrassment..."oh, and start with the harrassing tweets of our political opponents, right before an election", then sure.

      They chose freely!

  2. Sorry, I reject any premise saying that social media (or any other company) should be required to carry any otherwise-legal content. So long as the material isn't illegal for some reason (such as libel or actual obscenity) if they choose to ban material or not should be up to that company and not the government. I prefer Musk's position endorsing freedom but could easily see others choosing some other platform that isn't a free-for-all, and both can co-exist without trampling on the other.

    1. "Any" premise?

      There are a number of logical premises where it would be good policy for a company that was a monopoly or pseudo-monopoly to be required to carry content, even if it disagreed with it.

      1. Except that Twitter is not a monopoly or pseudo-monopoly. Twitter isn't even the social media platform with the most users. It probably varies some based on which data source you go to and how they collected the information, but just looking at platforms mostly about messaging and posting text or images, Facebook (main platform) is first, Instagram (also owned by the Facebook parent company, now called Meta) is next, then there is Facebook Messenger, and then Twitter. Right behind Twitter is Pinterest, then Reddit, Snapchat, and more. YouTube also has far more users than Twitter, but it wasn't included in the list I pulled this information from.

        Arguments about whether these companies should be considered "common carriers" that would be required to carry content that they don't want to carry should first acknowledge the reality that they aren't even close to the kind of monopolies that might justify that.

        1. Jason and Stephen, you're missing the point. Soronel made an absolute statement - there is no premise. Armchair is rebutting that statement with a hypothetical which, if true, could be a valid premise.

          Whether or not Twitter currently matches the hypothetical is irrelevant to the general argument of whether any premise can exist for infringing property rights.

      2. Armchair, in what category do you judge Twitter a pseudo-monopoly? I suggest, along with other internet giants, Twitter may be that with regard to advertising sales. Otherwise, it is a giant publisher. There are thousands of other publishers, some even bigger than Twitter.

        But if government can require Twitter to carry specific content, it will prove impossible to defend other publishers in court against the same requirement. Press freedom will be gone.

    2. Sorry, I reject any premise saying that social media (or any other company) should be required to carry any otherwise-legal content.

      I do, too!

      But I also reject they should implement anti-harrassment speech because government will wipe section 230 and cause them uncounted billions in stock value losses. "Oh, and start with the harrassing tweets of our political opponents, right before an election."

      1. Facebook: If it's a politician, we're publishing it anyway, as The People need to know what their politicians and wannabees think!

        Some people in America (what???): Boooo

        Someone deep inside the Democrats' strategy, in the voice of Charles Foster Kane: Harrassment is getting tired? Tell 'em...tell 'em the speech is dangerous. (Everyone laughs...)

  3. What we really need is a government agency or board that can tell us what's misinformation and what isn't. Maybe a "Truth Ministry" or "Disinformation Governance Board"

    Something like that.

    1. Keep in Putin’s most successful disinformation campaign was to vilify fracking and get the West to ban it. So the EU and NY banned fracking and now the EU is suffering the very real consequences of not developing their energy resources.

      1. Ah yes. Good thing our wise and powerful leaders would never fall for such disinformation and would put people in charge of such a board who would reflect their wise knowledge.

        https://www.ndoil.org/biden-ban-on-public-lands-to-cost-economy-670-billion-over-20-years/

        1. Actually America is producing record amounts of natural gas and exporting record amounts of LNG. New Mexico which has the most federal lands that produce natural gas is so flush with money that they are considering offering all residents free college! Other than Cuomo Democrats are extremely ineffective at limiting energy production…Bush/Cheney/Tillerson are equally ineffective at finding energy in North America. 😉

          1. How much of that "record amounts of natural gas" is coming from leases approved by the Biden Admin?

            How much is thanks to President Trump?

            You can't have it both ways: If Biden is "fighting climate change" then he's cutting US production of oil and gas.

            Which means he's driving the price up, driving inflation up, and enriching Putin

            1. Democrats have been ineffective at stopping North American production. The best president for undermining North American production was George W Bush.

        2. It's probably time for better Americans in advanced, educated, modern, successful communities to wreck Koch Industries for its shameful, deplorable, disgusting conduct with respect to Ukraine and Russia.

          1. More advanced, better educated Americans recognize a lame non-sequitur when they encounter one.

    2. Armchair, no. What we really need is private publishers empowered to publish or not, at pleasure. Like always. Stop trying to impose government censorship.

  4. The theater you are reading this is in on fire—-RUN FOR YOUR LIFE!! WE ALL GONNA DIE!!!

  5. In other news...

    Elon Musk's Starlink Terminals may be a significant reason for Ukraine's capability to defend against the Russian invasion by providing communications to Ukrainian forces which cannot be interrupted.

    1. Who provided those phone locators, where a Russian general makes a phone call and is greeted by a rocket?

  6. The record indicates that Elon Musk is a free speech champion in much the way the Volokh Conspiracy is an "often libertarian" (rather than movement conservative) blog and Donald Trump's statements are reliable.

    Although Musk is vividly weird, I won't go so far as to say he is a pedo guy or a child rapist, because only an extremely low-quality person with shitty judgment and behavioral control would stoop to that level, but I am not optimistic about a Musk stewardship of Twitter for a reason similar to that which causes me to drive BMWs rather than a Tesla: I am disinclined to trust a vehicle whose safety relies on the judgment of an impulsive, immature, antisocial, autistic misfit with a record of lying, shading, regulatory noncompliance, and reckless shortcuts.

    Clingers, of course, will welcome Mr. Musk in this regard. Especially the awkward incels and disaffected bigots.

    1. Fr. Kirkland, we have Teslas all over my small town. It's swarming with them and they fascinate me and trigger my envy. I have seen the insides of their powerplants, and being a gearhead I am fascinated with the electric motor technology too. Now if that news about nukes and diamonds in batteries is true...
      I wouldn't say someone with aspergers is autistic. But then I'm not educated in that area. I've known several people with aspergers who are quite brainy and admirable, but not anyone with autism.

  7. What if someone were to post on Twitter, "The Sup. Ct, in an opinion authored by Alito, is specifically overruling "Roe" and overruling "Casey?"

    (Just my way of sticking in today's shocking leak--if true--of a truly momentous decision. Hugely off-topic, of course.)

  8. 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.

    Twitter currently only moderates that kind of content when it doesn't come from the Left.

    See death threats to JK Rowling.

    Let me know when Social Media companies start treating "all cops are bast*rds" as hate speech. Let me know when Social Media companies start treating "white fragility" as racist hate speech.

    Until then? it's all lies

  9. Your grandfather's Democrat party: "Corporations are part of the great American free enterprise system that make this country great!"

    Your father's Democrat party: "Corporations need to pay their fair share and should be heavily regulated."

    The Democrat party 15 minutes ago: "Private corporations are awesome and free to govern themselves as they see fit. They are not bound by the constitution and if they want to restrict speech that is absolutely fine even if they control a large part of mass communication."

    Democrat party 5 minutes ago: "One billionaire should never control the media to the extent that is being permitted with Musk buying Twitter!!!!!"

    1. Do you really think that use of non-standard English -- Democrat Party -- here is persuasive? Or is the impulse to channel Joe McCarthy just irresistible?

      1. Joe McCarthy was a great man and right too!

      2. We love democracy...until we don't!

        See the leak today. I, for one, oppose overruling. But I do not run around as a kleptocrat screaming democracy over all, including freedom when it gets in my way.

  10. Probably many of us would be comfortable getting news and commentary only from sources with which we already agree. We might be even MORE comfortable if the sources gave us the impression that they were nonpartisan, unprejudiced, open-minded, well-informed. We would also be comfortable believing in good elves that will share their gold treasure with us if we treat them right.

  11. As long as Twitter has a mute/block function I don't see there being a big problem, although I would like to see Twitter still block and suspend users for overt racism, doxxing, and threats whether implied or true threats.

    I could see a real problem with public officials not being able to block tweets with vile racism or threats that are still within the first amendment. For example say someone starts posting vile anti-Semitic tweets on AOC's Twitter feed, she can't block them because the courts have held she is bound by the first amendment, and Twitter declines to. I can see a real problem for public officials having their Twitter feed polluted, not by dissenting opinions, but by things 99% of readers would find abhorrent.

    1. I'm sure these will be declared no longer public outlets but private, so the politicians on the good side can censor now.

    2. Why should private business have to shield politicians from speech that is otherwise protected. Random crank can send as much offensive material in the mail or over the internet to random politicians. Why is their feed on Twitter super special in your eyes?

  12. "violent or dehumanizing speech, harmful stereotypes, statements of inferiority, expressions of contempt, disgust or dismissal, cursing and calls for exclusion or segregation."

    So how has Twitter implemented that when the object of the hate is Trump or Musk?

    1. AT, probably the same policy in all cases—according to the preferences of the private publisher which operates the company. Just the way it should be. Or do you prefer government censorship?

      1. Are you really too stupid to understand the difference between a criticism of a company's dishonest and hypocritical policies and a call for "government censorship"? Or is this just your lame attempt to steal Sarcastr0's straw man schtick?

  13. Zuckerberg's pals, or AI or hairy-legged algorithms, shot down my FB post about Dr. Li-Meng Yan's claim that she escaped China to come to the USA and warn us that the Chinese commies (PLA) had weaponized the lab at Wuhan to carry on gain-of-function research with the coronavirus, altered its DNA to ravage humans, and created the monster that ultimately killed millions worldwide.

    First the censors posted a "fact check" on my FB claiming in effect that Dr. Yan didn't know what she was talking about. Then a few days later, they completely erased my message, along with the links I had posted which led to Yan's scholarly articles in English.

    What really pissed me off was that my seething radfem daughter saw the opportunity, and took it, to blast me on my FB page. So I got not only a bitch-slapping from Zuckerberg and his camp, including his Chinese wife, but also from my own daughter who had no knowledge whatever of what was going on and had her college degree in textiles and other crip courses.

  14. America is so fabulously awesome that we should extend our iconoclastic assignment of equal value to lies and truth, and to hate and charity, to the international community.

    Wait, DJT is reacting to the Dobbs leak. This should be awesome...

Please to post comments