The antidote to imagined government suppression of speech is not actual government suppression of speech.
The antidote to imagined government suppression of speech is not actual government suppression of speech.
F ollowing Elon Musk’s underwhelming release of the “Twitter Files” last Friday, the president of the “conservative” Heritage Foundation had a novel response.
“Big Tech is an enemy of the people,” wrote Heritage’s Kevin Roberts, ironically taking to Twitter to convince the public that the company cannot be trusted. Elon Musk, he explained, “just showed us how Twitter worked in tandem with the Left to suppress speech and influence the election. The time to act is now. Congress must hold Big Tech accountable.”
There was a time in the recent past when a conservative who was told Congress needed to step in to regulate the free-speech rights of a private company would have reacted as if just learning his daughter was dating Pete Davidson. Businesses, after all, not only have the right to speak as an individual would, they also have the right not to be coerced into engaging in speech they find objectionable.
For proof of that concept, listen to none other than Kevin Roberts, who spent much of the previous month arguing against the Respect for Marriage Act largely on the grounds that it forced private businesses to recognize same-sex marriage even if that practice violated the company’s moral or religious beliefs.
“The American people do not support weaponizing the power of the state against people of faith,” Roberts said at the time.
Clearly, Roberts has no such qualms about “weaponizing the power of the state” against businesses that don’t conform to his own politics.
Roberts isn’t alone. Last week, GOP senator Ted Cruz published a column arguing that Lorie Smith, a Colorado web designer who believes it’s her right to refuse requests to create wedding websites for gay couples but fears running afoul of her state’s anti-discrimination law, is the potential victim of government persecution akin to what Cruz’s father experienced in Fidel Castro’s Cuba. Cruz backed Smith, whose case against Colorado was heard by the U.S. Supreme Court this week, by decrying government’s ability to “threaten your livelihood, censor your speech, and force you to convey messages that conflict with your core beliefs.”
Well.
Two days later, Cruz appeared on Fox News to tell Twitter employees they were in “real civil and real criminal jeopardy” for deleting tweets at the behest of the Democratic Party and the Joe Biden for President campaign. Cruz bemoaned the fact that Republicans did not have control of the Senate because they would then be “holding hearings and issuing subpoenas” to threaten a private company that had deleted material contrary to its core beliefs.
Of course, this whole affair was reanimated on Friday night with the dramatic release of the Twitter documents by journalist Matt Taibbi, to whom Musk had entrusted the unveiling. But this turned out to be a lackluster rollout of curated emails and tweets that led Republicans to allege that Twitter had violated the Constitution by both deleting posts at the Democrats’ behest and by suppressing tweets mentioning the New York Post’s pre-2020-election story about Hunter Biden’s abandoned laptop.
Twitter clearly erred in blocking tweets about the Hunter Biden laptop story, not least because it gave Donald Trump loyalists years of fodder to complain that the site was out to get them. The provenance of the laptop itself, however, was suspicious enough that even right-wing media outlets such as Fox News initially declined to touch it — no reporter at the Post would even put their name on the original story that ran.
But as Cruz, Roberts, and their merry band of performative gasbags know full well, Twitter’s blockage of the laptop story wasn’t a First Amendment violation. The First Amendment not only protects a business’s right to affirmatively speak, it also protects a business from being coerced into hosting speech — whether it’s sketchily sourced sex-and-drugs stories about a presidential candidate’s son or stories about that son’s foreign dealings. Further, it provides conscience protections for people who don’t want to create websites catering to same-sex weddings.
Nonetheless, it was the deletion of posts that allowed us to differentiate the cravenly dishonest from the merely dimwitted among the “conservative” ignoranti.
It turns out that in most cases cited, the deleted posts, which appeared to originate from a Chinese troll factory, contained sexually explicit photos of Hunter Biden, including several of his penis, all of which were uploaded without his consent. Every one of these posts already ran afoul of Twitter’s moderation policy — nuking them from the platform wasn’t a close call.
That didn’t stop people who know better, such as Fox’s Tucker Carlson, from declaring deletion of the Hunter crank shots a “systemic violation of the First Amendment, the largest example of that in modern history.”
It also didn’t stop those ignorant of the fact that the First Amendment applies to speech limitations instituted by the government and not by private entities. Referring to the pulling of the wiener pics, Musk stolidly intoned, “If this isn’t a violation of the Constitution’s First Amendment, what is?” (This may be the first recorded example of a human trying to plausibly replicate the AI Chat Bot.)
After a haranguing by other Twitter users, Musk backtracked slightly, saying, “Twitter acting by itself to suppress free speech is not a 1st amendment violation, but acting under orders from the government to suppress free speech, with no judicial review, is.”
Still very wrong. As people who have experienced calendars know, Donald Trump was president in 2020, and neither the Biden campaign nor the DNC is “the government.” Private companies asking private companies for a solid is nowhere in the realm of a First Amendment violation. (Even if a government entity does ask for a moderation action, it almost certainly isn’t a First Amendment violation unless that action is coerced.)
But this is what happens when the owner of Twitter learns constitutional law from Twitter.
It is also what happens when a political party abandons its ideological underpinnings in favor of stroking the erogenous zones of a former president who has proposed suspending the Constitution to have himself reinstated. (On cue, Trump chimed in on the phony “massive fraud between the DNC and Twitter” talking point, evidently believing he was only a few more photos of Hunter Biden’s baby-maker away from being reelected.)
An email from Silicon Valley’s own congressman, California Democrat Ro Khanna, appeared in the “Twitter Files,” in which Khanna rightly expressed concern over Twitter’s decision to spike the Hunter laptop story. Khanna objected to Twitter’s argument that the laptop story should be blocked because the materials were “hacked,” saying the New York Times should be able to print hacked materials if it were, for instance, to find evidence of a war crime.
But Khanna’s argument grew less persuasive in a column he wrote this week in the Wall Street Journal. “Although Twitter is a private actor not legally bound by the First Amendment, Twitter has come to function as a modern public square,” Khanna wrote. “As such, Twitter has a responsibility to the public to allow the free exchange of ideas and open debate.”
But Twitter is not a “public square.” It is a business — one that exists to make money and, accordingly, must make moderation decisions in order to remain being a business. If in 2020 Twitter thought it hurt the site’s bottom line to host antisemites, anti-vaxxers, and the like, it is well within its rights to ban them.
For decades, the right of businesses to take part in the marketplace of speech has been an animating issue for conservatives. TradCons have celebrated Supreme Court cases such as Citizens United that largely melted the government’s ability to regulate the time, place, and manner in which businesses could engage in political expression. If you’ve driven in a college town or big city in the past decade, you have no doubt been preached to by a “Corporations Aren’t People” bumper sticker (typically printed by a corporation happily enjoying its speech rights).
But in 2022, you’d better double-check, because that car you’ve been following may be driven by GOP “it boy” Ron DeSantis, who saw no problem in using the power of Florida’s government to punish Disney for flexing its First Amendment rights in support of LGBTQ causes. If someone is saying something in Florida that DeSantis thinks is too “woke,” he will risk a speeding ticket to go regulate it.
Or maybe the car is being driven by Republican senator Josh Hawley of Missouri, who has advocated a form of online “Fairness Doctrine” for conservatism. Hawley has been hounding Twitter since 2020, when he sent a letter to the Federal Election Commission asking whether Twitter and Facebook had committed “egregious campaign-finance violations benefitting the Biden campaign” for their suppression of the Hunter laptop story.
Hawley jumped in on the “Twitter Files” debate this week, appearing on Fox News to claim that Joe Biden is trying to “cancel the First Amendment” by asking Twitter to pull the Hunter photos. Hawley called the requests “the most concerted censorship campaign against citizens in our history.” (The Alien and Sedition Acts were unavailable for comment.)
The answer for many of these new big-government “conservatives” is to erect a scheme by which federal regulators would decide whether private businesses are doing enough to promote conservatism on their sites. That would more than likely require a bureaucrat with a finely tuned eye to decide what is “conservative” or “liberal” and block social-media sites from removing material it finds questionable or objectionable.
And that would often put their ideological opponents in charge of their own speech, forcing them to publish material they found objectionable. Does Heritage really want the Biden administration requiring them to run pro-choice columns on their blog?
Effectively, the new Right is arguing that the government shouldn’t be regulating our speech, which is why we need the government to step in and regulate our speech.
Or at the very least, team MAGA would open social-media sites up to lawsuits based either on statements people make on the platform or on moderation decisions that sites make to take content off their platform.
For example, members of SEAL Team Six might be inclined to sue Twitter any time a former president retweets an insane conspiracy theory suggesting that Barack Obama and Joe Biden ordered their assassination because they mistakenly killed Osama bin Laden’s body double. (This actually happened.)
Tinkering in this way with Section 230 of the Communications Decency Act, which essentially provides immunity for platforms that allow users to post content, would mean the end of social media. No business is going to expose itself to lawsuits based on what its users say or what it decides to moderate based on its own values.
The new nationalist Right, however, argues that Twitter has gotten so big and popular, it has become somewhat of a monopolistic public utility in need of government regulation. This, of course, is complete nonsense, as I would be happy to explain on Facebook, Instagram, TikTok, Snapchat, Mastodon, Post, LinkedIn, WhatsApp, Truth Social, Parler, Telegram, GETTR, Clubhouse, or any of the dozen new apps being launched per week — some of which dwarf Twitter in total users.
In 2013, the Onion ran the satirical headline “Eminem Terrified As Daughter Begins Dating Man Raised On His Music.” Nearly a decade later, Elon Musk now finds himself having to manage a free-speech minefield populated by ideological trolls who grew up learning First Amendment jurisprudence on his site.