Since taking over Twitter, Elon Musk has repeatedly insisted that one of his primary goals for the massive social media platform is to protect free speech on the site. It is a noble aspiration. The problem is that his behavior increasingly suggests either that he has no idea what meansor, even worse, he Is, and he’s just not being honest. Either way, Musk (and those who have somehow been persuaded he knows what he’s talking about) could use a crash course in what violates — and doesn’t violate — Prime. amendment.
His demeanor increasingly suggests either he has no idea what it means, or, even worse, he does, and just isn’t being honest.
Let’s start with the so-called “Twitter files”. On Thursday we received a second installment of the files courtesy of Bari Weiss. Last week, Musk, along with Matt Taibbi, released the first installment: a trove of documents purporting to show that Twitter had improperly removed material relating to Hunter Biden’s laptop in the run-up to the presidential election in 2020 at the request of individuals associated with the Bidens. country. In his own tweets reacting to Taibbi’s thread, Musk made two assertions about the First Amendment. First, he wrote that “Twitter acting on its own to suppress free speech is not a violation of the 1st Amendment, but acting under government orders to suppress free speech, without judicial review, is.” Second, in response to another tweet about one of Taibbi’s alleged bombs, Musk asked rhetorically “If that’s not a violation of the First Amendment to the Constitution, what is?” Either way, Musk’s claim is that the Biden campaign’s demands to remove the tweets were not just a violation of the First Amendment, but a flagrant violation. In all respects, Musk is dead wrong.
The Free Speech Clause of the First Amendment, like virtually all provisions of the Constitution (except the Thirteenth Amendment, prohibiting slavery and the Eighteenth Amendment, imposing prohibition), applies only to ‘state action’. A private company no more violates the First Amendment by prohibiting certain types of speech in its operations than I violate the First Amendment by not allowing certain types of speech in my home. And although some have suggested in recent years that social media platforms, like Twitter, should to be treated as if they were government actors for First Amendment purposes, the Supreme Court, in its only recent chance to endorse that argument, declined to do so. Thus, it is well established law that Twitter, at least acting on its own, cannot violate the First Amendment, no matter What It does.
This brings us to Musk’s insinuation that Twitter’s actions violated the First Amendment because it was “acting under government orders.” There are at least two problems here, both of which would have been caught by any first-year law student (and many undergraduates). First, the Supreme Court has made clear, for decades, that the government “cannot normally be held responsible for a private decision except where it has exercised coercive power or provided such substantial encouragement, overt or covert, that the choice shall in law be considered that of » the government actor. It is understood that the government requests to private entities do not meet this test in the absence of evidence that the private entity did not believe it had a choice but to comply. Even the most conspiratorial reading of the “Twitter Files” fails to uncover such evidence.
Second, for those inclined to assume duress even without proof, the orders must come of the government. In October 2020, when the Hunter Biden story broke, neither Joe Biden nor the Biden campaign was “the government.” (There is simply Nope question that candidates for the presidency, if they do not currently hold public office, are not state actors for constitutional purposes.) Conspiracy theorists can point to the fact that Biden’s running mate, Kamala Harris, was then a U.S. senator. But the requests in question did not come from her; and individual members of Congress, acting on their own, have no power to compel anyone to do anything. Granted, Biden ultimately won, and so, by January 20, 2021, he could be said to be the government. But the putative scandal here is what happened in October 2020 – when the president was Donald Trump.
Finally, and in any event, much of the actual content of the tweets that the Biden campaign asked Twitter to remove were, by all accounts, images of Hunter Biden’s genitalia. Although there are circumstances in which sexually explicit material perhaps protected by the First Amendment, the idea that the First Amendment prevents the removal of a sexually explicit image that the subject has never consented to posting on the Internet is… absurd. That would be like claiming that someone who posts revenge porn on the Internet has a First Amendment right to keep it in plain sight. The mere fact of describing this argument is tantamount to discrediting it definitively.
The idea that the First Amendment prevents the removal of a sexually explicit image that the subject never consented to posting on the Internet is…absurd.
Musk’s dual misunderstanding of the First Amendment also informed his belated reaction to rising anti-Semitic discourse on Twitter under his leadership. For example, in defending the suspension of Ye (formerly Kanye West) from Twitter during a Twitter Spaces chat on December 3, Musk claimed that its policy is to suspend tweets if and only if their content is itself illegal. Here, he’s wrong the First Amendment the other way around. However offensive they are, swastikas are not illegal. Individuals may not have a First Amendment right to display them wherever they want, but there is a galaxy of daylight between the things we don’t have the constitutional right to do and the things that are illegal.
It’s hardly news that an eccentric billionaire with no formal legal training has no idea how the First Amendment works. But there are two issues with this case that make it newsworthy. First, Musk himself claimed that one of his goals for Twitter was to increase “free speech” on the platform. If his definition of “free speech” is radically different from the current state of mainstream (and constitutional) public discourse, it would certainly behoove him to explain how — and why. And second, because of its impact and influence, Musk’s patent misunderstandings of what the First Amendment does and does not protect (and to whom it does and does not apply), and the actions that he mistakenly takes (or does not take) in response, perpetuating misunderstandings among those who believe he has a special claim to expertise on the subject. As the Twitter Files document dumps continue, it’s clear that Musk not only lacks such expertise, he also seems utterly uninterested in developing one.
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