According to reports, Elon Musk is now expected to take over as the temporary CEO of Twitter as soon as his financing of the purchase is finalized. It is good news because buying Twitter may prove a mere skirmish in comparison to the coming battle. Political forces in the United States and abroad are already aligning to resist his effort to restore free speech to social media. If history has shown one thing, it is that it is easier to lose rights than to regain them. Musk has a product in demand but neither governments nor many of his own employees want to be sold. If Musk is to fulfill his pledge, he will need to take five specific steps to secure free speech protections. Given the interests allied against him, Musk must move quickly if he wants to not only reintroduce but to maintain free speech on Twitter. 1. Adopt the First Amendment standard. Pundits and politicians, including President Joe Biden and former President Barack Obama, have justified their calls for censorship (or “content moderation” for polite company) by stressing that the First Amendment only applies to the government, not private companies. That distinction allows Obama to declare himself last week to be “pretty close to a First Amendment absolutist.” He did not call himself a “free speech absolutist” because he favors censorship for views that he considers to be “lies,” “disinformation,” or “quackery.” The distinction has always been a disingenuous evasion. The First Amendment is not the sole or exclusive definition of free speech. Censorship on social media is equally, if not more, damaging for free speech. However, Musk can call this bluff. He could order Twitter to apply the First Amendment standard that applies to the government for speech in a public forum. In doing so, Musk would instantly eliminate most of the censorship currently imposed on the site. He would, however, have to stipulate that the standards for “government speech” (which allows for greater speech regulation) would not apply. Twitter will be treated as “the digital town square” that he has long embraced. 2. Restructure Twitter. Once a new standard is set, Musk must establish how it is enforced. That will require breaking down the extensive censorship bureaucracy at Twitter, starting at the top. That move is already likely as evident in the tearful remarks of Vijaya Gadde, Twitter’s head of legal, policy and trust, to her staff this week. Gadde, like Twitter CEO Parag Agrawal, is notorious in the free speech community for her record of censorship, including her role in banning Donald Trump as well as the New York Post story on the Hunter Biden laptop. Taking over as CEO and immediately removing such figures will have a clear impact. However, new measures should also include publishing the algorithms and finally achieving transparency in the decision-making at Twitter over content. This should also include a full accounting of any means used in the past to control online discussions, including throttling or shadow banning. 3. Shift from site moderation to individual filters. The adoption of the First Amendment standard is not perfect. This is a private site that can be sued for a variety of postings from copyright and trademark violations to privacy violations to criminal threats. Moreover, many sites bar the use of racist or offensive terms in comments. That is necessary since all readers are exposed to the comment section. Twitter is different. It can adopt a general free speech platform model while allowing individuals to apply specific filters to block racist terms or profane language. Free speech includes the right to readers to choose what they read. The key is that the decision can be left to readers rather than imposed by the company. Just as you can walk away from speakers in the town square, you can choose what you read. You can also choose to read more broadly. Twitter can leave such decisions in the hands of the consumer. 4. Shift away from ad revenue. The next campaign is predictable. Liberals will likely target advertisers to boycott Twitter. Advocates have already shown that they can prevail on corporations to yield to such campaigns. Many are concerned that Musk could be proven right that consumers want more freedom despite campaigns by companies like Facebook to get them to embrace censorship. If Twitter grows in size and profits it will only add pressure to companies like Facebook that continue to undermine their own product through censorship. Advocates will likely seek to attack Twitter’s profits to discourage other companies from embracing free speech. Notably, Musk has already expressed a desire to have fewer ads and rely more on subscription revenue. That will not only be aesthetically more pleasing but can insulate the site from the inevitable cancel campaign. 5. Protect against Surrogate State Censors. As it became more likely that Musk could buy Twitter, there was a notable shift in the comments of pro-censorship figures. Hillary Clinton, who has long been viewed as hostile to free speech values, went to Twitter to call on the European Union to quickly pass the Digital Services Act in Europe to force censorship “before it’s too late.” That time table appears to be the Musk takeover when the public will suddenly have a free speech alternative to the once solid alliance of censorship among social media companies. Since figures like Clinton cannot count on corporate surrogates to censor, they are returning to good old-fashioned state censorship. If the DSA is passed, they hope to force Twitter to resume censoring material – a warning echoed by EU officials this week. Congress needs to act to blunt such an attack on American companies seeking to restore free speech values. At the same time, the United Kingdom is pushing its own Online Safety Act and recently Musk was summoned to Parliament to answer for his alarming suggestion of restoring free speech on social media. The British are assuring citizens to “stay calm and censor on” despite Musk’s pledge. It is threatening to take ten percent of the company’s profits if Musk does not censor users. Musk will have to create firewall or siloed systems for countries forcing censorship. These systems should post tweets with a warning that these users are being subjected to national censorship standards while protecting US users from having their free speech reduced to the lower common denominator. These challenges are difficult but pale in comparison to reinventing space travel. The greatest asset that Musk brings to Twitter beyond a deep pocket and deep faith in free speech is his legendary creativity. He tends to focus on a horizon rather than the obstacles or opponents before him. Free speech remains a horizonal ideal but one that is attainable for someone with unflagging commitment and creativity. This could be the ultimate “moon shot” for Musk to bring free speech back to the Internet.Reprinted with permission from JonathanTurley.org.
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