Elon Musk discovers that freedom of expression is not rocket science

“This is a battle for the future of civilization. If free speech is lost even in America, tyranny is all that awaits us.

So says Elon Musk, the billionaire owner of Twitter, which remains, for now, the go-to place for political obsessives to debate polarizing topics like gender therapy, school vouchers and Covid-19 politics. . Musk has indicated he wants to relax the platform’s rules about what people can and can’t say on it – but doesn’t want to turn it into a “free-for-all hellscape”.

Seeking to balance these two impulses, Musk seems to be making it up as he goes. He said Twitter users should be “able to express themselves freely within the bounds of the law”, but also that Twitter could temporarily suspend anyone who tweets “anything illegal or destructive to the world”. and either delete the offending tweet. or make it “invisible”.

Even for those who closely follow free speech debates around internet technology, this is all quite baffling.

“If anyone can get inside his head, I’d love to hear it,” said Corbin Barthold, appeals attorney for Tech Freedom, a nonpartisan think tank. “He seems to go from free speech absolutism until he decides he doesn’t like something.”

Trevor Timm, co-founder and executive director of the Freedom of the Press Foundation, called Musk a “hypocritical giant” who abuses the term “free speech.”

Timm also worries about how Musk will fare when authoritarian countries like China, where Tesla has vast business interests, lean on Twitter to crack down on dissidents or journalists on his platform.

Judging by his tweets — including, most recently, an image of Pepe the Frog, the alt-right’s unofficial mascot — Musk seems consumed by the former owner’s enforcement of company policies toward accounts like those of Donald Trump, Kanye West and Milo Yiannopoulos, whose tweets violated Twitter’s rules on hate speech and, in the former president’s case, incitement to violence.

Mass restoration of suspended Twitter accounts has already begun. On Monday, Casey Newton and Zoe Schiffer reported that Twitter had begun restoring “approximately 62,000 accounts with over 10,000 followers” each. The list includes “one account that has over five million followers and 75 accounts with over one million followers,” they added.

Musk also urged his supporters to vote Republican in the midterm elections and said he would support Governor Ron DeSantis of Florida if he ran for president in 2024.

In doing so, Musk allied himself with a politician – DeSantis – who went after his own business. And he’s putting himself on a potential collision course with other tech companies at a time when impending Supreme Court rulings could destroy or at least fundamentally change his business.

Twitter versus Apple

Twitter constraining what its users can say on its platform is very different, legally speaking, from what the government can do to police speech.

As Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project, put it, if Musk “decided tomorrow that any speech critical of Tesla will be banned from Twitter, he absolutely has the right to do so.” (Musk, by the way, is an ACLU donor.)

Many speeches on social media platforms like Twitter fall into a category of what Daphne Keller, a Stanford scholar who was formerly a senior attorney at Google, calls “lawful but awful.” She defines it as “speech that is offensive or morally repugnant to many people but protected by the First Amendment.”

But as Musk learns, the First Amendment can’t force advertisers or business partners to agree to work with you once you change the rules in a way they don’t like.

Musk’s relaxation of Twitter’s moderation policies threatens to run afoul of Apple, which in the past has shut down apps from its online store over security concerns. He suspended Parler, a popular far-right Twitter clone, after the assault on the Capitol on January 6, 2021.

When CBS News recently asked Tim Cook, Apple’s chief executive, if the company might do the same with Twitter, he said he didn’t expect that to happen because Twitter had promised to continue. to moderate harmful content.

“I don’t think anyone wants hate speech on their platform, so I’m counting on them to keep doing that,” Cook said. Judging by his body language, however, he didn’t seem particularly confident in that assessment.

Monday, Musk claims that “Apple has also threatened to remove Twitter from its App Store, but won’t tell us why.”

He didn’t provide any evidence for this claim, but DeSantis warned that if Apple removed Twitter from the App Store, “It would be a huge, huge mistake, and it would be a really crude exercise in monopoly power that I think deserves a response from the United States Congress.

It’s unlikely ; Congress is hopelessly divided on how to regulate social media companies, with very little common ground between the two sides. But now that Republicans will take control of the House next year, they can hold hearings and at least make some noise.

This is the Supreme Court

While Congress is unlikely to be able to do much — other than complain — to change the way platforms like Twitter handle speech issues, the Supreme Court cannot.

Four cases are already before the court or soon will be and, as Keller noted in an interview, “it could upset everything we think we know about the platforms’ legal obligations.”

The tech companies are on the opposite side of DeSantis on a Florida law, known as SB 7072, that prohibits social media companies from deleting the accounts of any “journalistic company” or political candidate. It’s pending, under a federal injunction that was upheld by the 11th Circuit.

By signing this law, DeSantis dealt a blow to the “Silicon Valley elites”, whom he compared to the tyrants of Cuba and Venezuela.

A similar law in Texas has been upheld by a panel of three Fifth Circuit judges, but is also frozen for now. “We reject the platforms’ attempt to extract freewheeling censorship directly from the Constitution’s free speech guarantee,” Trump-appointed Judge Andrew Oldham wrote. “Platforms are not newspapers. Their censorship is not a speech.

When there is a split in the lower courts, the Supreme Court often steps in. Florida has brought in a seemingly sympathetic judge, Clarence Thomas, who oversees the 11th Circuit, to take its case.

Normally, most legal experts would expect the Supreme Court to strike down both laws as an unlawful attempt to infringe on the free speech prerogatives of a private company. Lower courts have repeatedly rebuffed dozens of similar attempts to do so. But Thomas might have allies in Justices Neil Gorsuch and Samuel Alito, and perhaps others, to support them in at least some aspects.

The question might turn on whether the court considers social media platforms more like newspapers or more like radio and television. In 1974, the Supreme Court ruled that a newspaper could not be compelled to publish responses to one of its editorials. But the court also ruled that cable companies can be required to carry local broadcast channels. Tech companies point to another decision, Reno v. ACLU, which established that internet platforms are technologically distinct enough that they should be regulated differently.

In an amicus brief opposing the Florida law, Tech Freedom, the think tank, called it a “First Amendment train wreck.” If confirmed, the band’s Barthold added in our interview, “It would be a huge burden on the platform. I don’t think Elon Musk would be happy with that.

The Supreme Court has already agreed to hear two other cases that could focus on whether tech companies can be held liable when their recommendation algorithms recommend terrorist recruitment videos. Twitter is party to one and filed a responding brief saying upholding the Ninth Circuit’s ruling would be “prejudicial.”

Depending on how the court rules in these two cases, it could dramatically change Section 230 of the Communications Decency Act, a 26-word provision of the 1996 law that prevents internet platforms from being treated as ” the publisher or speaker of any information provided by another information content provider.

When it comes to these cases, “it’s much harder to figure out what the judges are going to do,” Keller said. “It crosses political divides in a way that the Texas and Florida cases don’t.”

Chris Marchese, an attorney for NetChoice, an industry group that is a litigator in the Texas and Florida cases, said there was no sign Twitter had withdrawn its support since Musk’s takeover.

But there’s also no sign that any of these legal threats against his company are on Musk’s radar, either. other than a quick reference in the leaked meeting notes to his seemingly “very knowledgeable” about communications law.

“If Elon Musk really cared about free speech,” Timm said, “he would call his new buddy Ron DeSantis and ask him to stop attacking Section 230.”

What to read

• Kevin McCarthy, vying to become Speaker of the House of Republicans, has disavowed Nick Fuentes and his ideology but refused to criticize Donald Trump for meeting him. Catie Edmondson has the details.

• Meanwhile, Jewish Trump supporters who looked beyond the former president’s admirers to far-right sectarian corners, and his own use of anti-Semitic tropes, are now drawing a line, reports Jonathan Weisman.

• A same-sex marriage bill passed the Senate after a bipartisan breakthrough, reports Annie Karni. The vote will send the legislation back to the House, which is expected to approve it and send it to President Biden.

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