On Monday, in response to a reporter’s question about Twitter, White House Press Secretary Karine Jean-Pierre said that social media platforms have a “responsibility” to “take action” on “misinformation” and “hate.”
What Jean-Pierre meant by “responsibility” is unclear.
The White House is free to make the argument that Twitter should police “misinformation” and “hate speech” on its platform. But it has no legal basis to say that Twitter must do so. The vast majority of speech popularly thought of as “misinformation” or “hate speech” is protected by the First Amendment.
“Should” and “must” are two words that explain a lot of the confused debate surrounding free speech, the First Amendment, and Twitter.
To understand why, we have to understand the basics: The First Amendment’s free speech clause is a prohibition on government censorship. The government cannot punish Twitter — a private company — because it refuses to censor offensive speech. The corollary is that Twitter is not bound by the First Amendment when it makes content moderation decisions, and the public, including government officials, are free to criticize those decisions.
In fact, Musk said that’s why he bought Twitter. He thought the company was overzealous in censoring speech on a platform that, in his view, is akin to “the town square of the internet.” Unlike most of us, he had the means to do more than complain about it — he bought the whole damn company. In recent weeks Musk restored Donald Trump’s Twitter account and reversed the account suspensions of Jordan Peterson and The Babylon Bee. Twitter similarly stopped enforcement of its COVID-19 misinformation policy.
But what speech Twitter should allow on its platform — versus what it must allow — is where most of the messiness comes in. Because that’s not a debate about First Amendment law. That’s a debate about free speech culture.
We need a free speech culture to reap the benefits of free speech law
Free speech culture is a set of norms that support free thought and our ability to share our opinions. These are norms that see value in curiosity, dissent, devil’s advocacy, thought experimentation, and talking across lines of difference; where our first instinct in response to speech we dislike isn’t to find a way to censor it — or “cancel” the speaker — but to meet it with more speech. To defeat ideas we oppose with better ones. These are norms that can be advanced at all levels of society, from the average citizen to the largest corporation.
The idea is that we cannot reap the benefits of the First Amendment’s protection for free speech in a society where citizens are legally able to speak freely but few of them do so. A college can, for example, promise its students and faculty “the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” But if the culture doesn’t support those values, what do they matter? As Judge Learned Hand put it: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”
Demands for censorship most clearly threaten a culture of free speech when paired with coercive power.
Even still, culture by its nature is hard to define and assess. And what adds or detracts from a culture of free speech will be a constant debate — even within FIRE.
There has been plenty of debate surrounding Musk’s acquisition of Twitter. Debate is important. It is a necessary ingredient for a healthy free speech culture. But it’s not sufficient. Public discourse itself can show signs of hostility toward free speech. For one, speakers can call for illiberal outcomes, such as censorship. You can hardly say free speech culture flourishes when censorship demands are widespread. The discourse can also get free speech principles wrong. “Hate speech is not free speech” is a regular, legally incorrect refrain echoed by celebrities with powerful megaphones like LeBron James.
And then there can be the tenor of the conversation — a prevailing zeitgeist — that is skeptical of free speech even if outright calls for censorship are rare. Headlines such as “Elon Musk’s Twitter is fast proving that free speech at all costs is a dangerous fantasy” and “‘Opening the gates of hell’: Musk says he will revive banned accounts” have been common since Musk’s bid for Twitter. The popular radio program “On the Media” feared Musk’s support for free speech would lead to a free-for-all environment rife with child pornography. But that’s a strawman: child pornography is illegal. Nobody’s arguing it shouldn’t be. These antibody responses are reminiscent of the ones we saw earlier this year, when The New York Times’ editorial board lamented the decline in full-throated defenses of free speech, or in 2020, when a group of public intellectuals signed an open letter calling for open debate in Harper’s Magazine.
Equally concerning is when the tenor of the public conversation doesn’t match the public’s private thoughts. That speaks to a self-censorship problem. A Harris Poll of 2,063 U.S. adults conducted b
