I don’t know who needs to hear this… but being uber-wealthy does not make you an expert on all things.  Actually, I do know who needs to hear this.  It is Elon Musk.  He needs to hear that.  Someone should tell him that the ability to accumulate enormous amounts of wealth does not mean you are a qualified expert on all things.  I am curious as to what exactly Elon Musk’s qualifications are to determine what free speech means?  Or what free speech means in the United States?  Is he a constitutional law scholar? Has he studied the sociological impacts of certain forms of speech?  Does he have particular expertise in how the “free speech” of some can move markets and create or destroy wealth?  (Actually, he might know a bit about this, the SEC can tell you more). Has anyone ever talked to him about what happens when you shout fire in a crowded theater?

Full disclosure, I am not on Twitter.  I have never tweeted.  Indeed, I do not have a high opinion of Twitter.  Particularly, if it is described as a national town square for speech.  280 characters is insufficient for anything resembling a nuanced discussion to occur.  If I am completely honest, I believe Twitter might be a contributing factor in the devolution of American political discourse.  Twitter, arguably, was responsible for Donald Trump.  Twitter is excellent for slinging insults, the viral spread of lies, and the promotion of inflammatory speech. 

On the other hand, I am prepared to concede that as a social media platform it can be a force for good and a bastion of free speech.  Twitter was undoubtedly a tremendous facilitator for the Arab Spring (though the promise of that time has not been realized).  On Twitter, most of the time, anyone can respond to anything in real time.  There can be something truly inspiring about immediate, real-time, debate and discussion. 

At the end of the day, Twitter, like all things, is a force for good and bad.  It is a tool that can engage the ideals of free speech, while also providing a platform for bullies and trolls to suppress the speech of others.  Publicly, Elon Musk wants to own Twitter in order to promote it as a space for unfettered free speech.  But there is no single, universally accepted, legal or philosophical definition of free speech.  So, when Elon Musk says he wants to promote and protect free speech, he means he wants to promote and protect Elon Musk’s definition of free speech and that should be concerning. 

Let’s establish one thing, there is no such thing as wholly unencumbered, unfettered, unrestricted speech. The First Amendments states (in relevant part): “Congress shall make no law… abridging the freedom of speech.”  In its plain terms, the First Amendment serves only as a limitation upon the powers and actions of the United States Congress.  In other words, the federal government is prohibited from restricting speech.  A private company, or an individual cannot violate the First Amendment because it is not the government.  In other words, your First Amendment rights cannot be violated by McDonald’s or your asshole neighbor that keeps tearing down your “Hate has No Home Here” sign. Twitter does not violate your First Amendment rights when it takes down a post containing Covid misinformation.

Those words are only simple on their surface.  As it happens, the definition of “speech” is amorphous.  The Supreme Court has interpreted and reinterpreted the First Amendment.  In short, it turns out that the Government can make laws that abridge some forms of free speech, because any other conclusion is impracticable.  Should hate speech be protected in the same way as political discourse?  Is commercial speech as important as civilized debate?  Should we protect incitements to violence?  In the abstract, those questions have easy answers. But in practice those questions involve a complex balance of values. The line between hate speech and political opinion would be drawn differently depending on your perspective.  Does/should a corporation have its own independent right to free speech?  Is “Burn it all down!” an incitement to violence or an expression of the opinion that significant change is required?  It depends on your perspective.  Is there a right to yell “fire” in a crowded theatre? Those are moral and ethical questions, devoid of easy answers. Our Supreme Court often gets it wrong.  Even so, the American version of free speech is far more expansive than that of other western democracies. Our tolerance for hate speech is far greater than anyone else’s.

In recent years, Twitter and Facebook have had to figure out when and how to restrict Covid misinformation. They have had to determine how and when to fact check politicians, celebrities and even news media.  Which has led to congressional hearings and testimony and universal agreement that they aren’t doing it right.  Though, if you ask the right, you will hear that Twitter and Facebook suppress conservative viewpoints.  But if you ask the left, they will tell you that Twitter and Facebook not only tolerate lies but promote them.   Free speech to a modern conservative means freedom to speak, promote and spread inflammatory and baseless conspiracies.  On the left, it sometimes means that if your views do not sufficiently line up with theirs you should be shouted down and de-platformed.

There is no reason to believe that a Twitter owned/controlled by Elon Musk would be any better at determining how and what speech should be protected in a private platform.  Indeed, Elon has shown a penchant for irresponsibility.  In the not-so-distant past, Elon was in hot water for tweets suggesting he had funding secured to take Tesla private.  Unsurprisingly, Tesla stock soared.  But the promised privatization never occurred.  Instead, Musk saw his own wealth increase.  Otherwise, Musk has a penchant for inflammatory statements. 

So, what does free speech mean to Elon Musk?  We do not know.  We have no idea. I am comfortable predicting that Musk’s number one concern will be increasing his own wealth and promoting his own brands.  No one has ever become the wealthiest person in the world because of their unimpeachable values and ethics.  No one has ever attained that position because of their capacity for kindness and empathy.  There is no doubt that Musk will support “free speech” that benefits him.  But how will he draw the line between hate speech and political speech?  What will his Twitter do about misinformation, lies and incitements to violence?  No one knows.  But is there really any reason to believe that an ego-maniacal trillionaire is qualified to strike that balance?