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How Elon Musk is complicating America’s understanding of free speech

As the Twitter Files debacle highlighted, Musk is fronting an attractive-sounding crusade, especially for the right. But does free speech really need saving?
Elon Musk in 2019.
It feels like Musk’s actions as head of Twitter are incorrectly being blended with his statements on free speech.Frederic J. Brown / AFP - Getty Images

Last week, Elon Musk promised the world that a treasure trove of internal Twitter documents showing how the social media company had suppressed reporting on Hunter Biden’s laptop in 2020 would be released. These so-called Twitter Files were proof of “free speech suppression,” the billionaire claimed. The document dump, such as it was, turned out to yield little new information. But for supporters, the details are less important than the narrative: another battle in Musk’s grand war to protect and enable “free speech” — seemingly everywhere and anywhere.

It’s an attractive-sounding crusade, especially for those on the political right. But does free speech really need saving?

The essence of the First Amendment was born from the need to protect speech that we hate, not speech we love. The speech we love doesn’t need our protection; rather, it needs protection from people who may hate it and might therefore want to restrict or eliminate it from easy or any access. John Milton’s 1644 pamphlet “Areopagitica” highlighted this difficult goal lucidly, urging that the marketplace of ideas be kept open to everything, so that true ideas would not be kept from the public because they were mistakenly regarded as false.

Of course, Milton assumed that human beings are inherently rational, and able to discern truth from falsity. Thomas Jefferson, an early proponent of the First Amendment, did too. That assumption about human nature has always been risky. In the past few years, it has been put sorely to the test. And in the past few months, that turmoil has been brought to a boiling point by Musk and his own personal conception of free speech, embodied in his acquirement and administration of Twitter.

Before we get into that, we should be clear on exactly what the First Amendment does. It says Congress and the federal government — and by extension in the 14th Amendment, any state or local government — cannot abridge or limit speech or the press. Elon Musk, as far as I know, is not part of any government. He’s the owner and CEO of (several) private companies. That means he can pretty much do whatever he pleases with Twitter. He can make whatever rules he wants and break them when he feels like breaking them. This would be essentially true even if Twitter still were a publicly traded corporation. In that case, Musk could be held accountable by the stockholders. But as far as the First Amendment was concerned, he could still do whatever he wanted to — invite Ye back to Twitter, then ban him, and invite him back again.

On the other hand, free speech does not mean the total lack of limits. A criminal conspiracy organized online would be an appropriate and necessary target of government intervention and prosecution. Falsely shouting fire in a crowded theater (the famous example offered by Justice Oliver Wendell Holmes Jr. in the Supreme Court’s 1919 Schenck v. United States) is rightly prohibited as well. If we agree that endangering human lives is a worthy reason to limit a given communication, then spreading lies and conspiracy theories about something as deadly as Covid-19 surely deserves government prohibition, too.

Before Musk put in his bid to buy Twitter — which he later unsuccessfully attempted to rescind — he himself was the author of dangerous nonsense about the pandemic, promoting chloroquine as a possible remedy. Before Musk, Twitter wisely began labeling and then removing tweets that disseminated false information about the pandemic. For similar reasons — the endangering of human lives — Twitter before Musk correctly concluded that Donald Trump’s tweets had the potential to inspire violence after Jan. 6, 2021.

Since Musk took the reins of Twitter, proclaiming it a place where absolute free speech — or at least, almost absolute — would prevail, he has invited Trump back (Trump so far has declined the invitation) and decreed that Twitter would no longer enforce its banning and removal of Covid misinformation. As CEO, he has every right to do this. But it feels like Musk’s actions as head of Twitter are incorrectly being blended with his statements on free speech.

As someone who has been close to an absolutist regarding freedom of speech and press — that the government should keep its hands and rules off those and other media of communication — my calling for government intervention does not come easy. Just a few years ago, I said I disagreed with Karl Popper’s “paradox of tolerance” reasoning, which points out that a democratic government that is tolerant toward the publication of fascist ideas is laying the groundwork for its own destruction. I argued the very censorship of those fascist ideas is a big step toward fascism. But that was on Dec. 22, 2020, two weeks before the attack on the Capitol. As John Maynard Keynes is reputed to have said, “When the facts change, I change my mind. What do you do, sir?”

Fascism these days is no longer a hypothetical in an academic debate about freedom of the press.

So, yes, the facts have indeed changed here in the United States and around the world. Fascism these days is no longer a hypothetical in an academic debate about freedom of the press. It lives and destroys in Russian President Vladimir Putin’s invasion of Ukraine. It lives in the words of antisemites and white supremacists here in the United States. Is their hateful speech something that warrants protection by the First Amendment? Are their words examples of “awful but lawful” communication that we in our democracy must tolerate?

Musk’s self-proclaimed defenses of free speech sound good — most Americans remain, rightly, committed to this fundamental tenet of constitutional freedom. But such proclamations, as we saw with the "Twitter Files" debacle, can also be manipulative.

There’s a reason his actions are also giving many of us pause. Do we tolerate too much?

As Daniel Patrick Moynihan, James R. Schlesinger and many others have said, everyone is entitled to their own opinions but not their own facts. And this is especially true, I would add, when those twisted facts endanger our democracy and our lives.