Elon Musk finds out that freedom of speech isn’t rocket science

“This is a fight for the future of civilization. If freedom of expression is also lost in America, only tyranny awaits.”

So says Elon Musk, the billionaire owner of Twitter, which for now remains the go-to place for the politically obsessed to argue about divisive issues like gender therapy, school vouchers and Covid-19 politics. Musk has indicated that he wants to relax the platform’s rules about what people can and can’t say there — but he doesn’t want to make it a “free hellscape.”

Musk is trying to balance these two impulses and seems to be making up for it over time. He has said that Twitter users “should be free to speak freely within the limits of the law,” but also that Twitter might temporarily ban someone who tweets “something illegal or otherwise just destructive to the world” and either delete the offending tweet or make it “invisible”.

Even for those who closely follow free speech debates surrounding internet technology, it’s all quite confusing.

“If someone 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 back away from the absolutism of free speech 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 “huge hypocrite” who misuses the term “freedom of speech.”

Timm also worries about how Musk will act when authoritarian countries like China, where Tesla has huge business interests, rely on Twitter to target dissidents or journalists on his platform.

Judging by his tweets — most recently a picture of Pepe the Frog, the alt-right’s unofficial mascot — Musk seems consumed by the former owner’s enforcement of company policies on accounts like 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 recovery of suspended Twitter accounts has already started. On Monday Casey Newton and Zoe Schiffer reported that Twitter had begun restoring “approximately 62,000 accounts, each with more than 10,000 followers.” The list includes “one account with 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, saying he would support Gov. Ron DeSantis of Florida if he ran for president in 2024.

Musk has allied himself with a politician – DeSantis – who is after his own company. And it’s embarking on a potential collision course with other tech companies at a time when looming Supreme Court rulings could destroy, or at least fundamentally transform, its business.

Twitter vs Apple

Twitter legally limits what its users can say on its platform in a very different way than what the government can do with police speeches.

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

Much of what is said on social media platforms like Twitter falls into a category of what Daphne Keller, a Stanford fellow who was formerly a senior attorney at Google, calls it “legal but terrible.” She defines it as “speech which is offensive or morally repugnant to many people but is 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 booted apps from its online store over security concerns. It suspended Parlera far-right popular Twitter clone, following the attack on the Capitol on January 6, 2021.

When CBS News recently asked Tim Cook, Apple’s CEO, whether the company could do the same with Twitterhe said he didn’t expect it 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. But judging by his body language, he didn’t look particularly confident about that assessment.

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

He provided no evidence to back up this claim, but DeSantis warned that if Apple were to remove Twitter from the App Store, “it would be a huge, huge mistake, and it would be a really crude exercise of monopolistic power that I think deserves a response from the.” United States Congress.”

That is unlikely; Congress is hopelessly at odds over how social media companies should be regulated, and there is very little in common between the two parties. But now that Republicans are set to take control of the House of Representatives next year, they can hold hearings and at least make some noise.

Here comes the Supreme Court

If there’s little prospect that Congress can do much — other than complain — to change how platforms like Twitter deal with language issues, then that doesn’t apply to the Supreme Court.

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

Tech companies are taking sides with DeSantis over a Florida law known as SB 7072 that prevents social media companies from removing the accounts of “journalistic companies” or political candidates. It’s on hold due to a federal injunction confirmed by the 11th circle.

When signing this lawDeSantis called it a blow to “Silicon Valley elites,” whom he likened to tyrants in Cuba and Venezuela

A similar law in Texas was upheld by a three-judge panel of the Fifth Circuit, but is also frozen for now. “We reject the platforms’ attempt to extract an unfettered right to censorship from the constitution’s guarantee of free speech.” wrote Judge Andrew Oldham, a Trump official. “The platforms are not newspapers. Your censorship is out of the question.”

When there is a division in the lower courts, the Supreme Court often steps in. Florida has appealed to a seemingly benevolent Judge Clarence Thomas, who oversees the 11th Circuit, to take his case.

Normally, most legal experts would expect the Supreme Court to overturn both laws as an illegal attempt to violate a private company’s freedom of speech prerogatives. Lower courts have repeatedly fended off dozens of such attempts. But Thomas could have allies in Justices Neil Gorsuch and Samuel Alitoand possibly others to uphold them, at least in some aspects.

The question could depend on whether the court views social media platforms more like newspapers or more like radio and television. 1974, the Supreme Court ruled that a newspaper cannot be compelled to publish a response to one of its editorials. But the court also decided that cable companies can be required to broadcast local broadcast channels. The tech companies point to a different decision, Reno vs. ACLUwho found that internet platforms are technologically so different that they have to be regulated differently.

In an amicus letter opposing the Florida law, Tech Freedom, the think tank, called it “a First Amendment train wreck.” If it were upheld, Barthold added to the group in our interview: “It would put a tremendous strain on the platform. I don’t think Elon Musk would be happy with that.”

The Supreme Court has already agreed to hear two more cases that could address whether tech companies can be held liable if their recommendation algorithms recommend terrorist recruitment videos. Twitter is one of them, and submitted a letter of reply arguing that upholding the Ninth Court’s decision would be “detrimental.”

Depending on how the court decides in those two cases, it could radically amend Section 230 of the Communications Decency Act, a 26-word provision of the 1996 Act that prevents internet platforms from being treated as “publishers or speakers of information provided a other content providers.”

When it comes to cases like this, “it’s a lot 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 litigating the Texas and Florida cases, said there has been no indication Twitter has withdrawn its support since Musk’s acquisition.

But there’s also no sign that any of these legal threats to his business are on Musk’s radar, except for a cursory hint in leaked meeting notes to his apparently “very knowledgeable” communication right.

“If Elon Musk was really concerned 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, who was vying to be Speaker of the Republican House of Representatives, disliked Nick Fuentes and his ideology but declined to criticize Donald Trump for meeting with him. Catie Edmondson has the details.

• Meanwhile, Jewish Trump supporters, who have looked past the former president’s admirers in bigoted far-right 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 of Representatives, which is expected to approve it and send it to President Biden.

Thank you for reading On Politics and for subscribing to The New York Times. —Blake

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