Elon Musk’s Twitter is the ‘Town Square’ Nobody Needs

Twitter CEO Elon Musk, a self-described defender of free speech, recently presented the Twitter employees he fired with a severance offer – one month’s pay, on condition they sign a non-disparagement clause. So much for free speech.

But does free speech need Twitter or Musk to become its temperamental midwife?

No, free speech works just fine without Twitter. It doesn’t even need a town square, whatever that means is in this era of Big Tech and big protests.

In my experience as a civil rights attorney, I have come to believe that all of American society can be a public forum, if we are brave enough to allow it.

Free speech and dissent belong in the street, the college dean’s office, the convention hall and the shareholder meeting. But the idea that social media platforms – more than any physical space – provide a unique service as a “digital town square” is gaining currency these days. It’s such an appealing notion that Musk cited it as the reason he bought Twitter for $44 billion, in an open message to advertisers when he acquired the site on October 27.

Meanwhile, the Supreme Court is toying with the possibility of ruling on two cases that raise a thought-provoking question: Can state governments dictate content moderation rules on social media platforms? On January 23, the high court asked the Biden administration for its view, putting off a decision on whether to take up the two cases – for now.

The cases stem from laws passed in Florida and Texas to limit the power of Big Tech to engage in content moderation. Conservative politicians in those states have accused tech executives, at least those not named Musk, of censoring and imposing leftwing ideology on users. Ironically, Musk’s own rightwing biases and his erratic decision making as Twitter CEO have undermined the idea that social media is a place where people of every ethnic background and political point of view can be heard, in other words that it’s a town square.

Too often, social media posts spread hate or incite violence against groups of people or individuals. Shouldn’t those who host that speech, such as Meta which owns Facebook and Instagram and is the biggest player in social media, have a right to deny access? Private companies have never been obligated to permit all types of speech in their midst,  and there’s a thin line between hate speech and speech which incites violence.

Musk, the Tesla founder and the world’s second-wealthiest individual who has devoted a huge share of his fortune to buy Twitter, has relaxed content moderation rules on Twitter, all while employing almost apocalyptic language to hype his takeover.

“This is a battle for the future of civilization,” Musk tweeted on Nov. 28, in the midst of one of several controversies over internet censorship that he has ginned up. “If free speech is lost even in America, tyranny is all that lies ahead.”

Musk has also upped the ideological ante by aligning himself with conservative politicians, including Florida Governor Ron DeSantis (whom Musk said he would support if the Republican runs for president in 2024).

In 2021, DeSantis said, “Big Tech censors enforce rules inconsistently,” as he signed a law to prohibit social media companies from banning political candidates for elected office in Florida and forcing them to be more transparent about content moderation. DeSantis championed the law after Twitter banned former President Donald Trump just days after he used the platform to egg on supporters who stormed the Capitol on January 6, 2021.

Musk criticized the decision to ban Trump and reinstated the former president’s account on November 19. He has the right to make that decision (much as I disagree with it), but the previous regime at Twitter also had every right to de-platform Trump.

The First Amendment principle allowing social media companies to moderate content was bolstered by the U.S. 11th Circuit Court of Appeals, which in May 2022 blocked most of the Florida law. The court found social media companies have a right to decide which speech to block and what to permit, just as newspapers do on editorial pages.

The ruling was at odds with another appeals court ruling last year.

In September, the U.S. Fifth Circuit Court of Appeals upheld a Texas law that sought to prohibit social media companies from blocking any user from Texas, no matter how hateful their Twitter posts might be. In the ruling, the court subscribed to Musk’s own view that social media companies operate a “modern public square.”

The appeals court also equated social media companies with “common carriers” such as railroads, email providers, telephone companies and shipping services, reasoning that it was the obligation of these platforms to service every viewpoint.

However, no company should be blocked from exercising their right to limit criminal or harmful conduct. For example, it is a felony to solicit, command, induce or otherwise persuade another person to engage in a crime of violence.

The conflicting appeals court rulings have pointed to the need for the Supreme Court to decide if social media platforms are more like newspapers or railroads.

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