On Monday, in response to a reporter’s question about Twitter, White House Press Secretary Karine Jean-Pierre said that social media platforms have a “responsibility” to “take action” on “misinformation” and “hate.”
What Jean-Pierre meant by “responsibility” is unclear.
The White House is free to make the argument that Twitter should police “misinformation” and “hate speech” on its platform. But it has no legal basis to say that Twitter must do so. The vast majority of speech popularly thought of as “misinformation” or “hate speech” is protected by the First Amendment.
“Should” and “must” are two words that explain a lot of the confused debate surrounding free speech, the First Amendment, and Twitter.
To understand why, we have to understand the basics: The First Amendment’s free speech clause is a prohibition on government censorship. The government cannot punish Twitter — a private company — because it refuses to censor offensive speech. The corollary is that Twitter is not bound by the First Amendment when it makes content moderation decisions, and the public, including government officials, are free to criticize those decisions.
In fact, Musk said that’s why he bought Twitter. He thought the company was overzealous in censoring speech on a platform that, in his view, is akin to “the town square of the internet.” Unlike most of us, he had the means to do more than complain about it — he bought the whole damn company. In recent weeks Musk restored Donald Trump’s Twitter account and reversed the account suspensions of Jordan Peterson and The Babylon Bee. Twitter similarly stopped enforcement of its COVID-19 misinformation policy.
But what speech Twitter should allow on its platform — versus what it must allow — is where most of the messiness comes in. Because that’s not a debate about First Amendment law. That’s a debate about free speech culture.
We need a free speech culture to reap the benefits of free speech law
Free speech culture is a set of norms that support free thought and our ability to share our opinions. These are norms that see value in curiosity, dissent, devil’s advocacy, thought experimentation, and talking across lines of difference; where our first instinct in response to speech we dislike isn’t to find a way to censor it — or “cancel” the speaker — but to meet it with more speech. To defeat ideas we oppose with better ones. These are norms that can be advanced at all levels of society, from the average citizen to the largest corporation.
The idea is that we cannot reap the benefits of the First Amendment’s protection for free speech in a society where citizens are legally able to speak freely but few of them do so. A college can, for example, promise its students and faculty “the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” But if the culture doesn’t support those values, what do they matter? As Judge Learned Hand put it: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”
Demands for censorship most clearly threaten a culture of free speech when paired with coercive power.
Even still, culture by its nature is hard to define and assess. And what adds or detracts from a culture of free speech will be a constant debate — even within FIRE.
There has been plenty of debate surrounding Musk’s acquisition of Twitter. Debate is important. It is a necessary ingredient for a healthy free speech culture. But it’s not sufficient. Public discourse itself can show signs of hostility toward free speech. For one, speakers can call for illiberal outcomes, such as censorship. You can hardly say free speech culture flourishes when censorship demands are widespread. The discourse can also get free speech principles wrong. “Hate speech is not free speech” is a regular, legally incorrect refrain echoed by celebrities with powerful megaphones like LeBron James.
And then there can be the tenor of the conversation — a prevailing zeitgeist — that is skeptical of free speech even if outright calls for censorship are rare. Headlines such as “Elon Musk’s Twitter is fast proving that free speech at all costs is a dangerous fantasy” and “‘Opening the gates of hell’: Musk says he will revive banned accounts” have been common since Musk’s bid for Twitter. The popular radio program “On the Media” feared Musk’s support for free speech would lead to a free-for-all environment rife with child pornography. But that’s a strawman: child pornography is illegal. Nobody’s arguing it shouldn’t be. These antibody responses are reminiscent of the ones we saw earlier this year, when The New York Times’ editorial board lamented the decline in full-throated defenses of free speech, or in 2020, when a group of public intellectuals signed an open letter calling for open debate in Harper’s Magazine.
Equally concerning is when the tenor of the public conversation doesn’t match the public’s private thoughts. That speaks to a self-censorship problem. A Harris Poll of 2,063 U.S. adults conducted between Oct. 28-30 found that “more Twitter users think Musk will have a positive impact increasing free speech on the internet and freedom of the press, compared to people who don’t use the platform.” What’s more, two-thirds of Twitter users supported Musk’s Twitter takeover. Are we seeing a situation where the public privately supports Musk, but reporting and the public conversation make it seem like nobody does? What do you think of the emperor’s new clothes?
FIRE President and CEO Greg Lukianoff notes of the moment: “The transformation of free speech from an inspiring, even romantic democratic ideal into a bogeyman provoking hostility and suspicion is the product of a very intentional campaign originating on campus.”
Turning free speech into a bogeyman means free speech culture is on the ropes.
Whatever you think of Musk and Twitter, supporting free speech can cost you advertisers, partnerships — even your job
Of course, there are ways beyond pure speech that private individuals and companies can wield their power and influence to advance or hinder a culture of free speech.
Does Apple’s decision to stop advertising on Twitter — a decision it’s fully within its legal right to make — mean Apple “hate[s] free speech in America,” as Musk alleges? On its own, probably not. Advertisers make media buying decisions for all sorts of reasons. But what if the decision is motivated by Musk’s easing up on viewpoint-based speech policing? Would that raise a culture of free speech concern? The answer to that question probably depends on whether you think Musk is genuinely engaged in an effort to advance free speech in the first place.
Musk claimed to purchase Twitter because "[f]ree speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated.” He said he wanted a platform for discussion that was open to a fuller range of viewpoints. And while he’s undoubtedly loosened the reins in some respects by reinstating accounts that were suspended for viewpoint-based reasons, he’s also qualified his self-proclaimed “free speech absolutism” in other ways.
Musk has said free speech “simply means that which matches the law.” But many countries where Twitter operates are no friend to free speech and, in some cases, Twitter’s previous management had to fight government efforts to unmask anonymous accounts and censor speech. He also said Twitter’s new policy is “freedom of speech, but not freedom of reach,” appearing to support the same shadowbanning practice that had many social media critics claiming censorship before his purchase.
Musk may not be the best — or most consistent — messenger for free speech. And you may not agree with his interpretation of free speech. But Musk and Twitter aside, expressing support for free expression has resulted in the loss of advertising support or corporate partnerships in other contexts, too. Think about what happened to then-Houston Rockets general manager Daryl Morey after he expressed support for protests in Hong Kong: the Chinese Basketball Association suspended cooperation with the team and the Rockets allegedly considered firing him. Celtics player Enes Kanter Freedom's similar outspokenness on free speech and human rights issues led China to cancel Celtics broadcasts. Freedom suspects this cost him his job, which he lost the day after he partnered with FIRE for an ad supporting free speech that ran during the Olympics.
If you are a business leader or employee sitting on the sidelines witnessing the costs of publicly supporting free expression, might you think twice before doing so yourself? The answer is obvious. Chilling effects exist at a real cost to a culture of free speech.
Government coercion and monopoly power shape free speech law and culture
Demands for censorship most clearly threaten a culture of free speech when paired with coercive power. This is particularly troubling when it’s the government exercising that power. But it’s not always clear when government statements signal voluntary requests as opposed to veiled threats that raise First Amendment concerns.
What did White House Press Secretary Karine Jean-Pierre mean by “responsibility?” What did she mean when she went on to say the White House would “continue to monitor the situation” with Twitter?
What about the Biden administration’s pressuring Twitter in 2021 to kick mRNA vaccine and covid lockdown skeptic Alex Berenson off the platform? Berenson’s account was banned, but it’s unclear whether that was a direct result of the government’s pressure. It can be hard to find a smoking gun. Nevertheless, Berenson’s ban was another example of government “jawboning” that “threatens to become normalized as an extra-constitutional method of speech regulation,” according to the Cato Institute’s Will Duffield.
When the government is jawboning, it can feel like an “or else” is on the other side of it.
For its part, Apple hasn’t only throttled its advertising on Twitter. It previously removed the social media platforms Gab and Parler from its App Store after taking issue with their content moderation practices. It allegedly told the company LBRY that it needed to filter some search terms from its apps otherwise they wouldn’t be allowed in the store. There was chatter that Apple threatened to remove Twitter from the store, too. Apparently, Apple CEO Tim Cook took Musk on a walk around a pond and told him that’s not currently on the table.
But it’s easy to understand why the concern would lead Musk to send a volley of critical tweets in Apple’s direction: The App Store functions in a duopoly environment (along with Google Play) and is essential for any social media company’s successful operation. Apple maintains a 55.45% share of the United States phone market and a 52.63% share of the tablet market. Apple customers can download apps only from its store. In a world where 91% of social media users access their accounts via mobile devices, alternatives to Apple’s App Store for a social media platform are illusory.
“They say that they are going to continue to moderate,” Cook previously said of Twitter under Musk. “I’m counting on them to continue to do that.” But what if they don’t? What if down the road Apple decides to effectively torpedo Twitter’s business because it doesn’t like what legal speech it allows on its platform? It’s hard to argue that such monopolistic gatekeeping wouldn’t threaten a culture of free speech. The most valuable company in the world becomes the same Big Brother it once rebelled against — you better watch what you say (or allow others to say)! Beware of “think different.”
A free speech culture, if you can keep it
Benjamin Franklin is said to have responded to a question from a curious citizen about the outcome of the 1787 Constitutional Convention by noting that the delegates established a republic, “if you can keep it.”
The same sentiment holds true for free speech culture: To be sure, we need the law, but it’s the culture that will keep it. Unfortunately, polling indicates support for free speech is selective and declining. That means we’re not doing a good enough job of explaining the importance of free speech, despite seeing visceral examples of what the world can look like without it in Russia, China, and Iran. If American culture doesn’t support free speech, how long can we hope the law will continue to protect it?
If there’s any consistent thread to Musk’s Twitter acquisition, it’s that it will continue to generate headlines about free speech. Some of those headlines will raise First Amendment questions, but most won’t. Most will raise free speech culture questions. And while those questions aren’t always easy to answer, they are no less important.
If we care about an America whose support for free expression goes beyond the law, we must support a culture of free expression.