A First Amendment for Social Media Monopolists?  Why Not?

With Elon Musk’s purchase of Twitter and his announcement that “Free 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,” the leftist press and progressives everywhere plunged into crisis mode.  Ad hominem attacks on Musk followed the direst claims that mostly assumed or stated outright that free speech is the tool of dictators, particularly white male ones.  The factual falsity of that notion deterred them not at all.  Does it ever?

All of that has been gleefully taken down by more sensible voices making the point that, actually, free speech isn’t the threat the Left claims.  Admittedly, it’s a threat to the Left, but that’s about all.  We’ve known for a long time that contemporary progressive ideas generally don’t withstand even minimal scrutiny, and therefore a core progressive value is its instinctual rejection of free speech.

All that is easy enough.

What’s more difficult and more interesting is the future.  How will Musk actually carry out his promise to make Twitter a freer and more accessible platform?  Will his doing so last?  That is, will he discover just how much truly insane speech is out there lurking in the weeds, waiting to pounce?  Will his investments in China mean he limits criticism of its political leadership?  Will progressives try to defeat his purpose by flooding Twitter with the most loathsome speech hoping he knuckles under and imposes curbs?  How will other platforms respond to Musk’s liberation of Twitter, if they do?

Most importantly, what will be the details of Musk’s takeover, where the Devil is so authoritatively said to reside?  After all, he’s not going to tolerate all speech, any more than all speech has ever been tolerated even by the First Amendment, right?  Will he accept libel, slander and defamation?  What about fraud?  Can I advertise on his platform that my Magic Purple Elixir cures pancreatic cancer?  What about clear instances of treason?

I doubt it.  Elon Musk’s statements strongly suggest that he grasps both the basic concept of free speech - bad ideas only flourish if they’re not exposed to better ideas - and its benefits.  I suspect he also understands its limitations.  We’ve never had unfettered speech in this country, as a couple of hundred years of First Amendment jurisprudence make clear.  But of course Musk and the company he just bought aren’t governmental entities and so, theoretically, he could open the doors to literally any and every expression.  Or he could, as his compatriots on Facebook, Google, YouTube, Apple, etc. do, sharply limit what people can say.  As Twitter’s sole owner, it’s entirely up to him.

So what’s an eccentric billionaire to do?

I have a suggestion that is, I believe, elegant in its simplicity.  I think Twitter’s guidelines for what can and can’t be posted should be the same as the First Amendment’s about what can and can’t be expressed.  That is, Musk should pretend that Twitter is in fact a governmental entity and restrict speech only to the extent allowed one.  The principal reason we have freedom of speech is that the Founding Fathers feared the power of governments to quash the exchange of ideas and information that is so necessary to a functioning democracy.  Well, unanticipated by Jefferson, Madison, et al, social media companies now have at least that much power and perhaps more.

Such a conceit would have many benefits.  First, there’s an enormous body of case law spelling out with considerable precision what governments can and can’t censor/restrict.  So Musk’s guidelines are pretty much already in place.  Second, everyone except progressives understands those guidelines reasonably well and accepts them as is.  Generally speaking, Americans don’t object to the First Amendment as interpreted by the courts.

Third, it’d be hard for anyone to complain about a company that allows all the speech the Constitution does, but no more.  I understand that progressives have little regard for the straight-white-man-written Constitution specifically and free speech generally, so we can count on them to whine, but so what?  Hey, it’s their right and, the more they do, the more they reveal the bankruptcy of their ideas.  To most Americans, the right to speak freely is extremely important, so the more progressives trumpet their opposition, the more support they lose.  As they should.  And Musk’s response to every complaint would be that he’s just abiding by the First Amendment, no more, no less.  I and, I believe, many others, count that a pretty strong rejoinder.

As a matter of fact, I like this idea so well that I hereby encourage Congress to enact it into law.  Is that possible?  Congress of course “shall make no law… abridging the freedom of speech,” but I see no impediment to its requiring certain companies to allow all the speech permitted by the First Amendment. 

There’s been much whoop-di-doo over the past few years about how or if Congress should address the near-monopoly power enjoyed by a few internet platforms.  Perhaps a statutory requirement that they conform to the First Amendment’s guarantee of free speech is the best solution to the problem.  After all, as things stand now, we’re relying on a single billionaire to preserve our right to speak and to hear what others say - not exactly an ideal way to ensure freedom or democracy.  The law I propose would require some probably difficult-to-write definitions of to whom it applies, but beyond that would be simplicity itself.

I suspect some readers may cavil at this approach.  If there’s something fatally amiss about it, or if you just don’t like it, please let me know.  Also let me know if you do.



W. Held

See Jonathan Turley’s piece.

Janice Fiamengo

That sounds reasonable to me!

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