The universe of social media is now seeking to understand Elon Musk’s audacious bid to acquire all the shares of Twitter at a price of $54.20—$44 billion in total—that was initially accepted by the Twitter board of directors on April 25. Many regulatory and business hurdles still lurk between this initial agreement and the completed purchase. And the low break-up fee of $1 billion is seen as a sign that the transaction may yet founder.
The uncertainty over the deal’s future has not stopped, however, the nonstop speculation of what it will mean for the future of social media. By and large, these assessments are divided along sharp political lines. Right-wing stalwarts like Ben Shapiro chortle that the new deal promises to usher in a new age of Internet freedom by reforming how Twitter conducts itself, which in turn will lead to greater transparency. Musk has called himself a free speech “absolutist” who believes that free speech “is the bedrock of a functional democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated.” That optimism has not—to put it mildly—been shared by the political left, which has already outdone itself by denouncing him in an NBC news report—ironically relying on overheated tweets—as “a white nationalist-sympathizing, tax-dodging, anti-union, anti-free speech, ‘dystopian neocolonialist’ plutocrat tainted by his family’s background in apartheid South Africa, where Musk was born in 1971.”
There is little doubt that part of this fear is based on the simple view that Musk not only contributes to a greener environment, but—gasp—“is a libertarian edgelord billionaire” who does not toe the progressive line, a climate activist told NBC. This pending takeover has prompted prominent progressive thinkers to forsake their Twitter accounts to protest what looks, at least to them, more like a political coup than a corporate takeover.
Surely, the truth must lie between unbridled optimism on the one side and moral despair on the other. And to figure out where, one key question concerns which Twitter policies Musk might change if the takeover is completed.
Sadly, Musk will surely go badly astray if he seeks to make good on his promise to be a free speech “absolutist.” To start, focus on the big picture. Our entire system of legal rights and duties revolves around a set of shifting presumptions that seek to set the right balance between individual liberties and social obligations on the margin. To be an absolutist in the area of speech means that you must view with equal dignity persuasive advocacy and threats of force (verbal or physical), acts of fraud, concealment, defamation, bribery, obscenity, treason, and breaches of trust and confidence. The entire logic of ordinary speech allows for excuses (insanity and mistake) and justifications (self-defense, assumption of risk, necessity) in response to a prima facie case, which carries over without a hitch from private to constitutional law.
Starting with the wrong mental frame risks degrading Twitter to the point where neither progressives nor conservatives would want anything to do with it. The key point is to be able to draw sensible lines in the right places—and Musk, even if no “absolutist,” might still be able to make Twitter into a broader and more useful free-speech forum.
For example, one of the worst features of Section 230 of the Community Decency Act is that it draws that line in the wrong place, when it eliminates civil liability for “any action voluntarily taken in good faith 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.” Those last two words, “otherwise objectionable,” stand in stark opposition to the first six items on the list, all of which involve conduct that can be challenged as violent or immoral. Worse still, there is no need to show that the disputed items are objectionable so long as the provider or user considers them to be such in good faith, no matter how unreasonable that decision.
The powers at Twitter currently use this provision to impose broad and dangerous bans on the speech that can be posted. It was no credit to Twitter that it banned the New York Post for what turned out to be largely accurate stories about Hunter Biden’s misplaced laptop. It has also taken the same attitude to criticisms of the government actions on COVID-19, by adopting a policy that gives a very broad definition of “false or misleading information about COVID-19 which may lead to harm” which includes statements that “[v]accines (in general) are dangerous” and that adverse effects “have been covered up by governments/the medical industry.” In September 2021, the CDC took the position that the Pfizer vaccine and its booster were safe and effective, a position that may surely be posted on Twitter. But the CDC’s position has been challenged by an accusation that mRNA vaccines are dangerous; a recent study by Kathy Dopp and Stephanie Seneff concludes that as of February 6, 2022, the mRNA vaccine posed a greater risk of death than did COVID-19 for all people younger than eighty, and, furthermore, that the mRNA vaccine is associated with such adverse events as “thrombosis, myocarditis, [and] Bell’s palsy.” Another study of military personnel made similar claims of widespread increases in fifteen different kinds of vaccine side effects. Twitter’s policy on COVID-19 information has led to a lifetime ban on the scientist Robert Malone, who has both major detractors and passionate supporters now that he is a strong critic of the mRNA vaccine, which he had helped to develop. Twitter’s COVID policy blocks publication of these last studies and of the views of Malone at a time when all viewpoints should be heard and debated, even if not believed.
The dangers of “harm,” to which Twitter currently refers, cut in both directions: the risks of not taking the vaccine against the risks of taking it. These are debates over general policy in which reasonable people can disagree, and in which the evidence can change rapidly as new initiatives are undertaken and new data are accumulated. At the margin, both costs and benefits are inevitably subject to change, so that a decision to take the mRNA vaccine might be prudent for some populations at some times but unwise for other population groups at other times. The purpose of the major media should be to facilitate the free and open debate on the issue and not to take a once-and-for-all position that could prove unwise or dangerous in retrospect. For example, there is a serious debate over whether it is worth taking booster shots if they have both shorter effective periods and a higher risk of adverse side effects. An informed decision requires that both sides be heard. Musk would be well advised to scrap Twitter’s current policy forthwith.
At this point, it is commonly said in defense of the current Twitter policy that as a private party, its form of censorship on its own platform is not subject to any constitutional limitations under the First Amendment’s guarantee of freedom of speech. But for Musk, the Constitution and its limitations should be beside the point. Scrapping the Twitter misinformation policy would encourage the kind of free and robust debate that is essential to scientific progress. Indeed, it seems likely that Musk will narrow Twitter’s disinformation policy should he take over the company—a prospect that has sparked cries of outrage from the American left, which appears to favor Orwellian ministries of truth. We do not need a partisan Disinformation Governance Board—not in the Department of Homeland Security, and not in industry.
In this regard, any takeover of Twitter by Musk should, at the very least, make a big dent in the phalanx of left-leaning social media sites. Their dominant position continues to be that government should keep its hands off social media. But it has also been suggested that a unified front of Amazon, Google, Facebook, Apple, and Twitter may have been the result of some tacit form of horizontal coordination or even tacit government support. These allegations make it credible to ask, as I did in the Wall Street Journal and as Justice Thomas did in Biden v. Knight, whether these social media platforms should, in the absence of new entry, be treated as common carriers subject to a duty to serve all comers on reasonable and nondiscriminatory terms, unless the latter are engaged in antisocial behavior. For a long time, the prospect of new entry was tied to the uncertain prospects of starting a new platform from scratch. But the Musk takeover short-circuits that concern, easing any need to impose service obligations on existing carriers.
This structural improvement might swiftly improve the caliber of service on social media platforms without the need for any extensive government intervention—an outcome that people on all sides of the Internet divide should welcome, as robust competition beats state regulation every time.