The news everyone has been talking about this past week was Elon Musk’s acquisition of Twitter. People on the left are apoplectic, people on the right overjoyed, and both of them are utterly wrong. No one, it seems, even remembers what free speech actually means, much less why it’s worth defending. So let’s back up just for a moment and set the record straight.
First, we have the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That’s pretty self-explanatory even if you aren’t steeped in the culture of 18th-century America. But a lot of commenters get hung up on those first five words. “Congress shall make no law.” Well, that just means that free speech is only a government thing, and that private companies can do whatever they want, right?
The First Amendment, like the rest of the Bill of Rights, was meant to limit the powers of the federal government. It did not grant us the right to free speech, because a granted right is no right at all. What was given may be taken away at any time, as we saw in Canada a few months ago.
The American Bill of Rights instead recognizes that these rights are inherent in being human. They’re inalienable. Only a tyrant can even try to take them from us.
Thus, we already have the right to free speech, government or no government. Since the First Amendment is part of a social contract between We The People and those we have chosen to represent us, it makes sense that its text would specify who shall make no law. That doesn’t make it the last word on the matter. On the contrary, it’s just the first and most important.
We are born with the absolute, natural right to speak our minds. That was one of the key ideas of the Enlightenment. Modern so-called liberalism, however, believes that rights are contingent upon others’ feelings. You can’t speak your mind, they argue, because it might upset someone you’ve never met. And that has led us down the rabbit hole of being forced to deny basic scientific facts (there are two biological sexes, natural immunity protects us from viruses, etc.) if we want to participate in public discussion.
But isn’t Twitter a private company that can moderate however they want? That’s the next argument from the thought police, and it is indeed correct from a legal standpoint. That doesn’t make it right from a moral one, however. And it is indeed morally wrong.
Twitter, Facebook, Youtube, and similar socially-oriented sites have, in effect, become public spaces. Their sheer size and their cartel-like hold over the internet cause them to attract meaningful discussion and debate, even as their business and engagement models try their best to prevent it. By advertising themselves as open to all, then gaining an audience comprised of the majority of American adults, these sites have lost any claim to being “private” in the social sense.
Somewhere like Twitter, in other words, is—rather, should be—the modern-day equivalent of the public square. Because we can’t very well gather a hundred million Americans into a national park, we need a place where all of us can use our inalienable rights, and social media sites should be honored to take on that role. Instead of crowding out rational or traditionalist voices, they should embrace them while providing a place for honest debate.
As for the “company” part of the Left’s objections, remember that every website is owned by someone. With few exceptions outside the .gov space, that someone is a private entity, whether a person, group, or corporation. On top of that, almost all American ISPs are private companies. The backbone routers are privately owned. The domain registrars are private. The root DNS servers are mostly private. How far down the stack do you allow censorship to go? (Interestingly, net neutrality was a liberal cause a few years ago, yet few of them ever made the leap from keeping ISPs content-neutral to doing the same for platforms.)
Finally, while Twitter and others are legally allowed to fight against free speech, the obligations to society they have gained by their position as market controllers have, in effect, made them governments of their own. They represent communities, after all. They have the power to imprison, banish, or execute. Should they not, then, have the same responsibilities as any other government, up to and including a respect for the natural rights of their citizens?
To end, I’d also like to remark on the limits of free speech, because those are much, much farther away than most on either side of the political spectrum care to admit.
The First Amendment is traditionally taken as having only a few limits. Notably, “true threats” are not protected; though the legal definition is, like all legal definitions, hopelessly opaque, the gist is that a true threat is one for which a reasonable person would assume that there is a definite risk. It’s understandable why that isn’t protected. The rights of life, liberty, and the pursuit of happiness are just as inalienable, so direct threats to them can’t be allowed in a just society.
Likewise, direct calls to break a law or to defraud violate the principles of the social contract. The first is a little too strict, in my opinion, as it can also prevent the “petition for a redress of grievances” mentioned at the end of the First Amendment. But at least it makes logical sense.
Last of the major exceptions to free speech protection is the very nebulous category of obscenity. This, of course, should be done away with entirely. While there are some ideas so obscene they should not be spoken aloud, there are none which are so obscene that they should not be allowed to be spoken. The category is too broad, too ill-defined, to justify its continued inclusion.
Note, however, what isn’t on this short list, what does still have protection as free speech. “Hate speech” isn’t forbidden. Doxxing isn’t forbidden. Referring to a man as a man, rather than whatever he believes himself to be, does not meet the criteria to lose protection under the First Amendment. Neither does pointing out that a cold virus doesn’t justify a total lockdown, or that an election’s results were fraudulent, or any of the hundreds of other things for which Twitter’s thought police issued suspensions.
A social platform that, whether intentionally or not, has taken on the role of a public marketplace of ideas must allow those ideas to be traded. The First Amendment is a statement that government may not take away something we were born possessing, but we need the same protection for our speech when these pseudo-governmental corporations are the ones controlling every access point.
(To head off any potential objections, “just start your own Twitter” is not a valid argument. Gab and Parler tried that and found themselves barred from cloud providers, hosting providers, payment processors, and more. The fediverse operates mostly under the radar, but its larger instances still have to worry about being cut off economically.)
I don’t have a Twitter account. I don’t have a Facebook account. I’ve never uploaded a video to Youtube or even visited Snapchat. Why? Because I value my freedom more than the convenience these sites offer. If I can’t speak my mind, then I am not free. I’m a slave to those who control my words. If Elon Musk understands that, and he makes the appropriate changes so that his new acquisition respects the natural rights of its citizens above and beyond the extent required as a private company, then I’ll consider supporting him. But it’ll take more than words to get to that point.