ATLANTA -- On April 25, 2022, Tesla founder and CEO Elon Musk agreed to buy Twitter for $44 billion, although he’s now trying to put the deal on hold to investigate some Twitter metrics. At a conference before the takeover announcement, Musk said, “I think it’s very important for there to be an inclusive arena for free speech.” The clear implication being that Twitter currently is not an inclusive arena for free speech.
While his personal politics can be hard to pin down, Musk’s comments were in line with a decidedly conservative narrative. Conservatives have long believed that social media platforms have been unfairly targeting those offering conservative viewpoints. Their oft-cited example is the January 2021 ban of former President Donald Trump from Twitter.
Some states have acted in accordance with that narrative. In response to the ban of Trump and others, Texas passed a law in September 2021 which made it illegal for large social media companies to ban users based on their viewpoints. It was characterized as a move to defend conservatives’ freedom of speech, with the governor of Texas declaring at the signing ceremony, “We will always defend the freedom of speech in Texas ....”
As you would expect, a lawsuit immediately followed. Two large industry groups sued in federal court to stop Texas from enforcing its new law. Interestingly, their argument was that the law violated social media companies’ freedom of speech under the First Amendment. The freedom of speech, they argue, includes companies’ freedom to choose what speech they host on their platforms. By infringing upon their ability to choose, Texas is violating their First Amendment rights. In December 2021, a federal district court judge blocked the law while the lawsuit was pending on the grounds that the First Amendment protects a company’s right to moderate content. However, last week the 5th U.S. Circuit Court of Appeals reversed that decision and allowed the law to go into effect while the lawsuit continues.
Think about that for a second. Conservatives in Texas passed a law because they believe that large social media companies like Twitter and Facebook are infringing on conservatives’ freedom of speech under the First Amendment. In response, groups representing social media companies filed a lawsuit arguing that the law should be struck down because it infringes upon the social media companies’ freedom of speech under the First Amendment.
It’s like a First Amendment game of chicken, right? Surely both of them can’t be right. So who is going to blink first?
My money is on the state of Texas. And in truly conservative fashion, I base that opinion off the plain language of the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
For our purposes, the first five words of the Amendment are the most important: “Congress shall make no law …” Notice that it doesn’t say “People” or “Companies” shall make no law. By specifically naming Congress, it is clear that the First Amendment was intended to prohibit government action, not private action. That means that it limits the behavior of the state of Texas, not Twitter.
The law is clear that corporations are entitled to the freedom of speech guaranteed by the First Amendment. The Texas law — which is government action — by forcing social media companies to involuntarily host user speech, clearly infringes upon that freedom. On the other hand, those same companies do not violate your freedom of speech when they choose to censor your posts — private action — because the First Amendment does not apply to their actions.
As a legal matter, that should be the end of the story. But as we all know, there is the court of legal opinion and the court of public opinion. Whatever happens in that case, it will not end the public debate about whether or how these companies should moderate content. Collectively, these platforms have literally billions of users. That makes these platforms large “marketplace[s] of ideas.” Incidentally, the regulation of these platforms affects a large swath of humanity.
The first question is whether content should be moderated at all. I will say that’s not an entirely unreasonable position to have. It would save companies money by reducing their content-moderation costs. There is also no need to moderate for legal reasons. Federal law prevents social media companies from being sued for the speech that they host. With that legal immunity, it’s fair to ask why not take a “free market” approach and simply let the ideas compete for supremacy. The best ideas will win, right?
Wrong. In my humble opinion, such an approach ignores the real-world power and impact of ideas. Ideas can change the world, for better or worse. The central idea of the civil rights movement — that the phrase “all men are created equal” written in the Declaration of Independence should really mean that all men are created equal — changed the world for the better. Adolf Hitler’s idea that Jews were the enemy of the German people changed the world for the worse.
The question is not whether content should be moderated, but what content should be moderated. If you ran Twitter and Hitler had a page, would you moderate his content? Would you ban him for posting his idea? Again, as a private company, the law allows it. I’m thinking that most of us would. Why? Because it would be the right thing to do. Hitler’s idea is both indisputably wrong and potentially dangerous. We wouldn’t want our business tied in any way to that kind of idea.
Said another way, some ideas just have no business being on the marketplace shelf. Walmart and Target sell everything. You can get groceries, clothes, school supplies, power tools. Everything. But if you saw a bag of feces for sale on the shelf, you would wonder who in the h.e. double hockey sticks is running that place, right?
That’s what some ideas are. Bags of feces. “Donald Trump won the election.” Bag of feces. “Vaccines are unsafe.” Bag of feces. “Critical race theory is harming our children.” Bag of feces. The “great replacement” theory. Bag of feces.
To be clear, I’m not citing those ideas simply because they are conservative views. I will say, though, that research has found that conservatives have a greater tendency towards misinformation than liberals do. But that’s not the point I’m trying to make. I am citing those ideas because not only are they categorically untrue, they also — like Hitler’s idea — change the world for the worse.
Claims that the election was stolen from Trump are a direct attack on the integrity of our democracy. A democracy cannot survive if its citizens do not believe that elections are fair. Opposition to vaccines negatively impacts the public health of all Americans, resulting in preventable death. Claims about critical race theory in schools have generated legislation which makes teaching our children, already a hard job, even harder. If teachers cannot even discuss race in classrooms, how can we expect children to be prepared to engage with an increasingly diverse America as an adult? The “great replacement” theory — the idea that there is a conspiracy to diminish the influence of white people, through immigration and other means — is a vial of arsenic in the melting pot that is America. We saw last week in Buffalo the harm that the “great replacement” theory can cause. Ten people dead. All of them Black.
I’ll concede that there is some subjectivity involved here in determining which ideas “change the world for the worse.” Someone might say that the ideas that I cited earlier do not actually meet that requirement. I’m being a bit dramatic.
If you say so. But I’m only telling you how I (and arguably, Jack Dorsey, Twitter’s co-founder and former CEO) would run a social media company. You’re always welcome to start your own competitor company. You don’t have to try to regulate big business. I thought free markets were the American Way, right?
Eric Foster, a community member of the editorial board, is a columnist for The Plain Dealer and cleveland.com. Foster is a lawyer in private practice. The views expressed are his own.
To reach Eric Foster: ericfosterpd@gmail.com
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