Elon Musk and the Fantasy of Free Speech Absolutism

Shutterstock Illustration/Kylana

The Elon Musk-Mark Zuckerberg rivalry, entertaining as it is, dances around a crucial question: How do we reign in extremism on social media?  If it can’t be done without offending the First Amendment, how do we bracket and tag misinformation so that people are at least aware that they are being manipulated, not informed?

Musk cast his recent Twitter acquisition in grandiosity.  It’s “a battle for the future of civilizationIf free speech is lost even in America, tyranny is all that lies ahead.” 

Citing plans to “free the bird,” meaning, cut online content moderation, Musk calls himself a "free speech absolutist." Musk will eventually learn that unfettered disinformation and hate speech will not free the bird. They will kill it. 

There’s no such thing as absolute freedom, even for speech

Musk is correct that Twitter has served as a useful digital public square to the world, but free speech in the context of First Amendment protection has never applied to privately run platforms like Twitter. The government can’t abridge free expression, but private purveyors of media content can, and do, or else they will find it impossible to monetize their platforms through advertisements. 

It has never been the case that anyone can say/write/express anything they want, about any subject they choose, without legal repercussions.  Words that incite violence have always been actionable, as is child pornography, as are deliberate falsehoods communicated through forgery, perjury, fraud, and false reports, as are credible threats, as are words of slander and libel. Navigating these complexities through 500 million tweets per day requires staff with discretion and finesse, the opposite of absolutism.

The idyllic premise driving the "free marketplace of ideas" protected by the First Amendment -- as endorsed by Musk -- is that falsehoods and shoddy reasoning are best countered with more speech, not less. Eventually, the rationale goes, as long as informed people stay engaged in the debate, true facts will emerge, and the better argument will prevail. This was certainly true when learned men who drafted in Latin and French debated fine points of constitutional law. 

However, as First Amendment jurisprudence developed during the 20th century, "free" speech in the public square was counter-balanced with "fairness" mandates requiring a reasonable opportunity for the presentation of contrasting viewpoints. Under the Fairness Doctrine, in effect from the 1940s through 1987, news channels were required to present opposing sides of the same argument. The Federal Communications Commission mandated public broadcasters to present fair and balanced coverage of controversial issues as a condition of their license. 

In today’s environment, licensed broadcasters have been replaced by networks, and most people get news online. The Fairness Doctrine is gone, lamentably, leaving a free-for-all where one-sided bias, grievance, infotainment, and angertainment are allowed to masquerade as News

Negativity sells

Fast-spreading exchanges on the internet today allow disinformation campaigns to consume public discussion. Even without algorithms that amplify divisive content for profit, basic human survival instincts cause us reflexively to tune in to danger.  That is why we pay disproportionate attention to negative information (ditto, negative thoughts). When faced with real or perceived threats online, old flight or fight instincts are triggered. Pugilists stay and escalate rhetoric (fight), while others simply leave the discussion (flight), morphing public debate into a one-sided echo chamber fairly quickly. 

Despite known distortion effects, Musk has officially welcomed accounts previously suspended for hate and harassment back to the Twitter fold, including Trump. In the short time since, hate speech and extremism on the platform have increased exponentially. Foreign terrorist groups, including those associated with the Islamic State and Russian state media, have flocked back to Twitter in droves. Within two weeks after Musk’s purchase, 450 Twitter accounts were newly created to spread Islamic State content, up 69% from 12 days prior.

Sowing hatred and division through online disinformation campaigns, foreign terrorist groups are now flourishing anew on Twitter, alongside America’s own re-activated tinfoil hat brigade led by Q-Anon, Marjorie Taylor Greene, and right-wing militants.

Federal law enforcement is on alert. The Department of Homeland Security has issued a warning acknowledging a sharply heightened threat environment. They warn that an "unprecedented" surge in extreme online content has re-united violent extremists, predicting that Twitter will contribute to more violence in the months ahead, including support for genocidal Nazis and white nationalists. 

Promoting free speech while protecting it requires a deft balancing act, not a hammer. Sometimes the courts get it wrong, sometimes free speech enthusiasts get it right, and sometimes plain common sense has to prevail.  

Surely even a self-proclaimed absolutist like Musk can understand that inviting an incendiary ex-president to stand in the public square screaming "fire" could actually burn the square down.


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