Image Credits: @john_cameron on Unsplash (Unsplash License)
In December 2021, Twitter began to regulate posts and accounts that spread misinformation about the COVID-19 pandemic. This was to prevent conspiracy theories, alarmist rhetoric, and other harmful, misleading language about COVID. Twitter’s policy states, “Content that is demonstrably false or misleading and may lead to a significant risk of harm […] may not be shared on Twitter.” This update to Twitter was controversial; some people asserted that it was essential to help fight against the COVID pandemic, and others argued that the policy violated free speech.
Seven months after Twitter began regulating misinformation about COVID-19, former President Donald Trump issued a lawsuit against Twitter because he claimed they illegally censored him. Trump’s Twitter account was disabled for spreading misinformation about the COVID-19 pandemic and the 2020 election. Then, Twitter banned Trump from the platform for his role in the January 6th insurrection. Twitter argues that the tweets Trump posted violated their Twitter Rules. The lawsuit between Trump and Twitter highlights a common misconception many Americans have about the First Amendment. Though it does protect citizens’ rights to free speech, it does not apply to private companies like Twitter, but only to the government, its agencies, and institutions that accept government funding. For example, George Washington University must have a Title Nine Office and allow students to exercise freedom of speech because they accept government funding. This does not apply to a private company like Twitter.
In the lawsuit, prosecutors made the claim that “Defendant Twitter’s status thus rises beyond that of a private company to that of a state actor,” and therefore Twitter should be “constrained by the First Amendment right to free speech in the censorship decisions it makes.” The prosecution’s key piece of evidence focused on Twitter censoring content after being pressured by federal actors.
This distinction is a difficult one to make but was imperative for prosecutors. After the civil rights cases, the Supreme Court asserted that “the federal government does not possess the power to regulate the policies and practices of private entities” according to Section 5 of the Fourteenth Amendment. By differentiating Twitter as a state actor, the State Action Requirement comes into play. The State Action Requirement entails that for a plaintiff to have the standing to sue they must demonstrate that it was the government and not a private actor responsible for the violation. The prosecutors argued in the class action introduction that Twitter has launched an “aggressive campaign of prior restraint against a multitude of Putative Class Members through censorship (flagging, shadow banning, etc.) resulting from legislative coercion and collusion with federal actors.” This is known as “jawboning” or informal pressure or coercion by the government or government actors to encourage specific self-regulation of private companies. Jawboning is a tactic typically used by the Federal Reserve to influence inflation rates or imply certain ideas about their future plans regarding the market, it is not typically used in the context of speech. Prosecutors are arguing that Twitter holds “powers traditionally exclusively reserved to the State” because that is the only exception under which a private party would be subject to the First Amendment. These powers include actions that are considered essential public services or functions established by Jackson v. Metropolitan Edison Co., 419 US 345 – Supreme Court 1974.
Prosecutors also questioned the constitutionality of Section 230 of the Communications Decency Act of 1996. Normally, Section 230 is used to protect the free speech of individuals on interactive internet services (such as Twitter, Facebook, or Instagram). Still, the Prosecutors were calling into question Part C of the section: the Protection for “Good Samaritan” blocking and screening of offensive material. This clause of Section 230 states that no provider will be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers being obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Prosecutors argued that this clause allows Twitter to violate free speech legally by protecting Twitter’s restriction of former President Trump’s speech. Ironically, if the courts had ruled in favor of the Prosecution, Section 230, legal protection that promotes free speech, would have been removed. However, ultimately, California U.S. district judge James Donato dismissed the lawsuit against Twitter stating that the prosecutor’s argument was “not plausible.”
Shortly before Judge Donato announced the results of the lawsuit, Tesla and SpaceX founder Elon Musk announced that he was going to purchase Twitter. Musk is another advocate of universal free speech. His motivation for this purchase was his belief that Twitter was limiting free speech. Musk claimed that the platform was censoring conservatives. Trump made a similar case in his lawsuit, arguing that 21 other accounts along with himself were banned because of their conservative ideology. After the deal was completed, Musk began to consolidate his ownership of the company, but has not followed through on his promise to change the Twitter Rules that had supposedly been limiting free speech on the platform.
After Musk bought Twitter, the Network Contagion Research Institute, a research group that tracks cyber threats, found that the use of the n-word on Twitter rose 500 percent. There was rising speculation and anxiety leading up to Musk’s purchase about what would happen once content regulation on Twitter was simplified or removed. People were fearful that the social media platform would become a haven for extremist groups promoting misinformation and hateful rhetoric, so many advertisers started pulling their ads. In response, Musk posted a tweet stating that “Twitter cannot become a free-for-all hellscape, where anything can be said with no consequences!” Musk has changed his tune about context regulation, and, by association, laws such as The Communications Decency Act and State Action Requirement that allow him to continue regulating speech on the app. These same laws are the ones that former President Trump was fighting against in his legal case with Twitter. Trump’s lawsuits against various social media platforms like Twitter and Facebook put a spotlight on the rising regulation of free speech in social media. Musk will soon be setting up a “content moderation council” despite his previous claims that he is a “free speech absolutist.”
The issue is that there are social norms that rule free speech. Some people deem some speech acceptable, while others would disagree. Some may find what someone else says offensive, while others may not. As Musk is finding, there are consequences to speech and associations between different groups that agree on what is deemed socially acceptable. Generally, how people think about speech aligns with their political ideology.
Citizens of the United States are very passionate about their right to free speech. Free contestation and expression of ideas are a key part of preventing a polarized country and creating a united civil society. The dialogue that has been opened up by Trump’s lawsuit and Musk’s purchase of Twitter raises the question of how harmful society deems this speech versus how dearly it holds its right to free speech. The law reflects the views of society and as Musk and Trump have illustrated, society seems to be more passionate about their right to free speech than the censorship of hate speech. However, at the same time, the legal system has still held against these opposing forces.