Elon Musk’s Covert War on Free Speech

NEW YORK – In 1897, the American newspaper magnate William Randolph Hearst sent illustrator Frederic Remington to cover the Cuban War of Independence. When Remington relayed that “there will be no war,” Hearst allegedly cabled back: “You furnish the pictures, and I’ll furnish the war.”

It’s an old story with a well-known moral: Wealth confers power, and power begets a craving for more power. A familiar corollary follows: He who controls the means of mass communication controls how reality is constructed and conveyed.

The means of mass communication have changed since Hearst’s time, but the behavior of plutocrats has not. Having used Twitter quite effectively to promote his own businesses, Elon Musk recognizes that the platform commands significant influence in contemporary public life. And now that he has completed his $44 billion purchase of the company, it is imperative that we consider why he wanted it – and what he will most likely do with it.

“Given that Twitter serves as the de facto public town square,” Musk tweeted on March 26, 2022, “failing to adhere to free-speech principles fundamentally undermines democracy.” In deciding to buy the company, he explained a week or so later, “I don’t care about the economics at all … my strong, intuitive sense [is] that having a public platform that is maximally trusted and broadly inclusive is extremely important to the future of civilization.” And so, as a self-described “free-speech absolutist,” Musk claims to be saving society’s public square by reversing Twitter’s policies to prohibit politicians like former US President Donald Trump and US Representative Marjorie Taylor Greene from using the platform to propagate demonstrable lies and disinformation in the name of free speech.

Musk’s call for “absolute freedom” of speech may sound simple enough in the abstract, but the implications are troubling. For example, Musk’s understanding of free speech would validate conspiracy theorist Alex Jones’s defense of his reckless and injurious lies, including his outrageous claim that the 2012 Newtown school massacre, in which a gunman murdered 26 people (20 of them six- and seven-year-olds), was staged by “crisis actors.” A Connecticut court has just rejected that view, ordering Jones to pay nearly a billion dollars to the families of the Newtown victims.

The court is right. No freedom – whether of speech or action – is absolute. On the contrary, meaningful freedom requires ground rules to limit abuses that would otherwise render it a dead letter. That is why we have laws against fraud in the marketplace of goods and services. Without such constraints, false and deceptive claims would proliferate, fomenting levels of mistrust that inevitably invite market failure.

The same goes for the marketplace of opinions and ideas. Freedom of speech is not a license deliberately or recklessly to issue statements that harm others or put their property rights at risk. That is why we have laws against defamation and the intentional infliction of emotional distress – as the Alex Jones case reflects. It is also why we have laws proscribing incitement to imminent violence, perjury, and lying to the authorities about criminal activity.

Some limits on speech have also been deemed essential to safeguard free and fair elections. For example, there are laws in many states in the United States that proscribe deliberately spreading false information about polling locations, voting times, ballot authenticity, or voting instructions, nor can you make provably false claims about your status as an incumbent or about your campaign’s affiliations.

And as the criminal prosecution of participants in the violent mob that sought to block the peaceful transition of power at the US Capitol on January 6, 2021, makes plain, the freedom to hold unpopular political views does not confer a right to violent insurrection.

Even with current policies of content moderation, social-media platforms are awash in disinformation that is corroding public trust and undermining the essential function of free and informed political discourse. Such subversive tactics designed to crash the marketplace of opinions and ideas are, in fact, “anti-speech acts.” Their only purpose is to debase political discourse itself.

Musk has already offered a preview of the changes he might make at Twitter. What starts with reinstating Trump’s account, allowing him to disseminate more demonstrable lies about election fraud and his political opponents, will augur broader evisceration of Twitter’s standards.

Musk’s claim that he will save society’s “public square” is fundamentally bogus. He will fuel its disintegration by permitting it to be overrun by toxic disinformation, including deep fakes, insipid propaganda, calls for violence, doxing, and other forms of illiberal anti-speech acts.

By Richard K. Sherwin

Richard K. Sherwin is Professor of Law and Director of the Visual Persuasion Project at New York Law School. He is the co-editor (with Danielle Celermajer) of A Cultural History of Law in the Modern Age (Bloomsbury, 2019).

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