Elon Musk and Twitter Files Controversy revealed a major problem — but Shockingly not with Twitter

Well, Controversies and Elon go a long way around. Since taking over Twitter, Elon Musk has consistently insisted that one of his main goals for the giant social media platform is to protect free speech on the site. That’s a noble claim. The problem is that his behavior increasingly suggests that he has no idea what that means, or worse, that he does and is simply not being honest. a crash course in what does and doesn’t do against the First Amendment.

The forbidden “Twitter Archives”

Let’s start with the so-called “Twitter archives”. On Thursday we received a second installment of the files courtesy of Bari Weiss. Last week, Musk, along with Matt Taibbi, released the first part: a wealth of documents purportedly showing Twitter showing inappropriately suppressed footage related to Hunter Biden’s laptop in the race. until the 2020 presidential election at the request of those associated with the Biden campaign. In his own tweets in response to
Taibbi’s thread, Musk made two First Amendment claims.

What did Elon Musk Say?

First, he wrote that “Twitter’s sole action to suppress free speech is not a First Amendment violation but acting under government orders to suppress free speech without judicial review is.” Second, Musk asked in response to another tweet about one of the alleged Taibbi bombings rhetorically: “If this isn’t a First Amendment violation, then what is?” In both cases, Musk claims that the Biden campaign’s calls for the tweets to be removed were not just violation of the First Amendment, but a colossal violation. Musk is dead wrong in every possible way.

What the Constitution Says?

The First Amendment’s freedom of speech clause, like virtually every provision of the Constitution (except for the Thirteenth Amendment, which prohibits slavery, and the Eighteenth Amendment, which prohibits slavery), applies only to “government action.” A private corporation does not violate the First Amendment by prohibiting certain types of speech in its facility, any more than I violate the First Amendment by not allowing certain types of speech in my home. And while some have suggested over the past years that social media platforms like Twitter should be treated as if they were government actors for First Amendment purposes, the Supreme Court, on its most recent occasion, declined to support that argument, this from So. Therefore, it is law that Twitter, at least when acting alone, cannot violate the First Amendment no matter what it does.

Twitter and Allegations on Musk

This brings us to Musk’s allegation that Twitter’s actions violated the First Amendment because it “acted at the direction of the government.” There are at least two problems here, both of which would have been obvious to any freshman law student (and many college students). First, for decades, the Supreme Court has made it clear that government “can ordinarily be stopped.” Responsible for a private decision only when it has exercised coercive force or given such important encouragement, whether overt or covert, that the decision must legally be regarded as that of the governmental actor. It is understood that the government will require private companies not to comply with this test unless there is evidence that the private company believed it had no choice but to comply.

Even the most conspiratorial reading of the “Twitter Files” fails to uncover such evidence. Second, for those who are inclined to accept the coercion without proof, the orders must come from the government. When the Hunter Biden story broke in October 2020, neither Joe Biden nor the Biden campaign was “the government.” (There is simply no question that if presidential candidates do not currently hold public office, they are not constitutional state actors.)
Conspiracy theorists may point out that Biden’s running mate, Kamala Harris, was then a US Senator.

But the requests in question did not come from her; and individual members of Congress acting on their own have no power to compel anyone to do anything. True, Biden ultimately won, so you could say it’s the government until January 20, 2021. But the supposed scandal here is what happened in October 2020 when the President was Donald Trump.

Conclusion

Finally, and in any case, much of the actual content of the tweets that the Biden campaign asked Twitter to remove were reportedly images of Hunter Biden’s genitals. Although there are circumstances in which sexually explicit material can be protected. Because of the First Amendment, the idea that the First Amendment would prevent the removal of a sexually explicit image that the subject never consented to having posted on the internet is ridiculous. That would be like arguing that someone who posts revenge porn online has a First Amendment. The right to change remains visible to everyone. Merely describing this argument would definitely discredit it.

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Musk’s two-tiered misunderstanding of the First Amendment has similarly shaped his belated response to the rise of anti-Semitic discourse on Twitter under his leadership. For example, during a December 3 Twitter Spaces chat, Musk defended the suspension of Yes (formerly Kanye West) from Twitter, stating that his policy is to ban tweets if and only if their content itself is illegal. Here he misreads the First Amendment the other way. As offensive as they are, swastikas are not illegal.