Jacob Sullum: Elon Musk Should Take a Clear Stand Against Censorship by Proxy

From the outside, Twitter’s content moderation decisions look haphazard at best. From the inside, they look worse, especially because government officials play an unseemly and arguably unconstitutional role in shaping those decisions.

The internal communications that Elon Musk, Twitter’s new owner, has been gradually revealing to a select few journalists show that the company’s former executives arbitrarily applied the platform’s vague rules and surreptitiously suppressed content from disfavored accounts. The “Twitter Files” also confirm that the company had a cozy relationship with federal agencies, allowing them to indirectly censor speech they deemed dangerous.

Musk, a self-described “free speech absolutist,” is trying to signal that things will be different under his ownership. He faces a daunting challenge as he attempts to implement lighter moderation policies without abandoning all content restrictions, lest Twitter become a “free-for-all hellscape” that alienates users and advertisers.

One part of that mission should be relatively straightforward. Musk could make it clear that neither government bureaucrats nor elected officials have any business dictating what Twitter’s rules should be or how they should be enforced.

Musk took a significant step in that direction last month by rescinding Twitter’s ban on “COVID-19 misinformation,” a nebulous category that ranged from verifiably false assertions of fact to demonstrably or arguably true statements that were deemed “misleading” or contrary to government advice. That policy invited censorship by proxy, giving the Biden administration an excuse to enforce obeisance to an ever-evolving “scientific consensus” by publicly and privately pressuring Twitter to crack down on speech that officials viewed as a threat to public health.

The Twitter Files show that the company also collaborated with the FBI, the Department of Homeland Security and the Office of the Director of National Intelligence in identifying and suppressing “election misinformation,” another ill-defined category open to wide interpretation. Executives enforcing that policy regularly conferred with those agencies, and they privately recognized that such coziness would be controversial if it were publicly acknowledged.

The reason for that reticence should be obvious. It is one thing for a platform to enforce its own content restrictions, even if it does so in a way that is widely viewed as unfair, inconsistent or politically biased. But when that platform takes its cues from the government, private moderation decisions can easily become a cover for unconstitutional speech restrictions.

Because the government has the power to make life difficult for social media companies through castigation, regulation, litigation and legislation, its “requests” always carry an implicit threat. It is therefore not surprising that Twitter and other major platforms have been eager to fall in line.

Musk himself seems confused about the issues at stake here. He tends to conflate “freedom of speech” with freedom from private content restrictions and misleadingly implies that Twitter’s broad ban on “hateful conduct,” which he is still avowedly committed to enforcing, applies only to speech that fits within judicially recognized exceptions to the First Amendment.

Musk’s confusion was apparent last week, when Rep. Adam Schiff (D-Calif.) said he was “demanding action” in response to an “unacceptable” rise in “hate speech” on Twitter since Musk took over the platform in late October. Musk responded by questioning the evidence that Schiff cited, saying “hate speech impressions are actually down by 1/3 for Twitter now vs prior to acquisition.”

Instead of getting bogged down in a debate about whether Twitter has in fact been overrun by bigots on his watch, Musk should have asked why Schiff thinks he has the authority to demand the censorship of speech that offends him. The First Amendment, which bars Congress from “abridging the freedom of speech,” is pretty clear on that point.

Independent journalist Glenn Greenwald laments that “dictating to social media companies what they can and can’t platform, how they must censor, the role Democratic politicians play in all this, is just assumed as normal.” Musk is well-positioned to challenge that assumption, and he could start by telling Schiff to mind his own business.

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