Pity the Twittering classes. They have been in the grip of a moral panic ever since Elon Musk first signaled his interest in buying the social-media platform. The self-appointed censors of the Twitterverse may soon be stripped of the greatest power one can wield in an information society: the power to silence objectionable viewpoints. In an attempt to justify their own relevance, these censors and their supporters are arguing that free speech on Twitter could do irreparable harm to society at large. Giving users license to post whatever they please will turn the platform into a virtual dystopia seething with hatred, extremism, and misinformation, they fret. Worse still, it will turn the real world into an actual dystopia—“a brave new nightmare,” as former secretary of labor Robert Reich recently put it.
Really? If we are to take Musk at his word, he has no intention of turning Twitter into a free-speech free-for-all. Responding to what he termed “the extreme antibody reaction from those who fear free speech,” Musk tweeted the following: “By ‘free speech’, I simply mean that which matches the law. I am against censorship that goes far beyond the law.”
It must be noted that under American law, free speech is not unbounded speech; so if Twitter were to use the law as a guide, free speech would not mean unmoderated tweets. The First Amendment allows enormous latitude for free expression—but it also recognizes categories of unprotected speech such as true threats, defamation, blackmail, child pornography, and incitement to imminent violence. All these categories have ascertainable definitions under the law. And although there are always hard cases, the law offers objective standards by which to determine whether speech is protected.
Twitter users’ chief complaints about the platform’s speech policy is that it is vague and applied in an arbitrary way that leads moderators to silence either too much speech or too little speech. Twitter’s current rules on hate speech are a perfect illustration. Users are prohibited from engaging in “hateful conduct,” which is defined as speech that “promote[s] violence against or directly attack[s] or threaten[s] other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.” In principle, this rule seems unobjectionable. In practice, it is unworkable. For example, if a tweet makes a user feel uncomfortable, does that make it threatening? Does a tweet criticizing a religious precept fall within the category of hate speech if it makes a reader feel that his beliefs are under attack? And if one believes that offensive speech is by definition a form of violence, the policy means whatever the offended user, the wary moderator, or the outraged Twitter mob feels it does.
The term “hate speech” has no legal definition and, for that reason, it is a problematic basis on which to regulate expression. However, existing First Amendment doctrine does give us clarity. A speech policy that closely follows the contours of the law would enable Twitter to moderate hateful speech without curtailing freedom of expression. To be sure, as a private enterprise, Twitter is not constrained by the First Amendment in the same way that government actors are. But if Elon Musk is serious about making Twitter an online forum for free speech, he couldn’t find a more workable blueprint for moderating content than the First Amendment.
Consider the following prohibitions, which would be consistent with First Amendment jurisprudence. Instead of prohibiting speech that “promotes violence,” Twitter could use the rule of Brandenburg v. Ohio as a guide: It could prohibit users from advocating the use of force in a manner that is both directed to incite the use of force and is likely actually to incite the use of force. Similarly, it could prohibit users from making what the law calls “true threats.” True threats are serious expressions of an intent to commit an act of violence against an individual or group such that the individual or group would reasonably fear the threatened violence.
These prohibitions establish objective standards by which to characterize speech. Applying them to specific cases may be challenging, but difficult decisions are better than arbitrary ones.
Does this mean that privately owned social-media platforms are required to uphold the First Amendment in moderating online content? The courts have yet to decide the issue, and Congress has yet to develop a policy that moots the question. Until they do, Elon Musk has an opportunity to conduct an experiment in ordered liberty that could serve as an example to other digital platforms—and to civil society more broadly. To be sure, it would be a bold experiment, but for as long as Section 230 is on the books—this element of the Communications Decency Act of 1996 treats the platforms not as publishers but more like telephone switching hubs—it mitigates some of Musk’s legal exposure by offering a safe harbor to Twitter and platforms like it, shielding them from liability for “good faith effort[s] to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
At first glance, this may well sound like much ado about 280 characters or less. But the struggle over free expression on Twitter mirrors in many ways the retreat from free expression and open inquiry underway in America’s elite institutions—in universities, in the professions, in corporations, and in research institutions. The retreat began in the academy, where the postmodern critique of reason and objectivity reached its apotheosis in the critical theorists’ elevation of “lived experience” to an altar once consecrated to the pursuit of truth. To the crits, reason is an instrument of structural oppression rather than intellectual liberation; discourse and debate are raw power reduced to public performance; and “personal truth” is the sole truth (even though some truths are weightier than others on the cosmic balance of intersectionality).
All of this would be purely academic, so to speak, were it not for the fact that a powerful bureaucracy has emerged on campuses in tandem with these ideas to censor, police, and punish utterances that make listeners feel marginalized, offended, or “unsafe.” Take, for example, the rise of Bias Response Teams, which encourage students to report anonymously on speech that may be offensive, hurtful, or discomforting so administrators can respond with direct intervention and discipline. Or consider the definition of “sexual assault” and “sexual violence” that has been ascendant since it was first introduced in a 2014 model campus survey developed by Rutgers University with the support of the United States Department of Justice. The survey asks students to report incidents of “sexual assault” and “sexual violence,” defining the terms as “refer[ring] to a range of behaviors that are unwanted by the recipient and include remarks about physical appearance, persistent sexual advances that are undesired by the recipient, threats of force to get someone to engage in sexual behavior, as well as unwanted touching and unwanted oral, anal or vaginal penetration or attempted penetration.” The breadth of this definition is breathtaking. A catcall—or even a clumsy compliment—is in the same class as rape. It is little wonder, then, that a recent Brookings study revealed that an alarmingly high percentage of students believe that violence is an appropriate response to offensive speech.
Young adults conditioned to view disagreeable speech as a form of harm no less egregious than physical blows become young professionals who import this outlook into the workplace, the marketplace, and the political arena. They respond to challenging ideas and offensive speech precisely as they did while in school: with an appeal to censorship, punishment, and, ultimately, ostracism. Worst of all, they come to see free speech as a threat to individual well-being rather than as a necessary precondition for liberty.
We may not yet have seen the full effect of these authoritarian impulses on our politics, but there is no environment in which they are more easily indulged and more grotesquely amplified than social media, where it is possible to summon an outraged mob with a tap or a click. To be sure, Twitter is not alone in this regard. But Twitter’s demographics are unique among social-media platforms in that, according to a recent Pew poll, the majority of its users are younger, more highly educated, more affluent, and more liberal than the U.S. population as a whole. It is therefore little coincidence that the company’s hate-speech policy looks a good deal like the sort of speech codes one is likely to find on any number of college campuses.
It is here that the debate over free speech on social media reveals an even deeper fissure in America’s political culture. Even though similar percentages of Democratic and Republican Twitter users report that the tone of discourse and the trustworthiness of information are serious problems on the platform, there is a striking disparity between the two groups’ views of online censorship. Fifty-nine percent of Republican users polled by Pew find it highly problematic that Twitter restricts the visibility of certain posts, while only 17 percent of Democrats shared that view. And while 61 percent of Republican users reported that banning users was a major problem, a mere 6 percent of Democrats agreed.
This disparity may well be a matter of ideological creep, as the same intellectual forces that are destroying open discourse and free inquiry in our educational and cultural institutions gain traction online in spaces dominated by the progressive left. Or it may be a function of an authoritarian impulse in human nature. After all, the crits did not invent censorship. In all likelihood, both forces are at play.
Whatever the case, as Americans question the value and utility of free speech—and as digital natives come to trust in and rely on censorship to shield them from ugly, offensive, or hateful ideas—a recommitment to the First Amendment is vital. Elon Musk may not have set out to become a First Amendment warrior when he decided to acquire Twitter, but he certainly has thrown down the gauntlet. He may well find that orthodoxy and authoritarianism are more intractable than the laws of physics. However, if anyone is up to the challenge of defending people’s freedom to speak their mind and promoting their capacity to think for themselves, he’s the one.
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