In announcing the deal to buy Twitter last month, Elon Musk said in a statement: “Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated.”
Which makes him — subject, of course, to government oversight — the king of the town square.
And it raises two questions:
First, what will Musk allow and, more important, not allow, in his town square?
Second, what will government regulators, here and around the world, do about it?
Technically, the First Amendment only applies to the government, not to Elon. But there is a doctrine in the law that says if private parties are responsible for a public forum, they are subject to the same limits on discriminating against speech as the government would be.
Musk seems ready to take on that role, seeing the First Amendment as a shield. But it does not provide the absolute protection that current law does.
Under current law, internet platforms like Twitter aren’t responsible for what users post, meaning they can’t be sued for libel, defamation, incitement, complicity to commit crimes, conspiracy, aiding and abetting violence, selling phony handbags, child porn, drug sales and the like.
But there is growing support, including most recently from former President Barack Obama, for repealing that law, which would leave the courts looking over the shoulders of the digital kings in a virtually standardless world, importing all the uncertainties of libel and defamation law, not to mention incitement, complicity, conspiracy and even racketeering as they do.
You see, calling yourself a free speech absolutist as Musk has done doesn’t answer the question of what you do about speech that involves or incites harmful conduct. Speech is not a purely ethereal thing. There is no place where free speech is absolute.
The U.S. Supreme Court has, painstakingly at times (consider the morass that is campaign finance law) and with obvious frustration at others (“I know it when I see it” as the definition of obscenity), sought to develop various hierarchies of speech, which raise as many questions as answers.
Even so-called absolutists bristle, as they should, when you get to child pornography, and there are few defenders of Russia’s efforts to influence the outcome of the 2016 election.
Of course, that some lines are difficult to draw does not mean the easy ones shouldn’t be drawn.
There are many easy ones, frighteningly so. If children are involved, don’t. If life or liberty is involved, draw the line. If government leaders are trying to suppress speech, stand strong.
Free speech is one of a set of values that encompasses an agenda of liberty and freedom.
The first resort, and it is not a bad one, is to process and transparency. When we can’t figure out what to decide, we can always focus on who does the deciding and ensure that they are both visible and accountable.
Nothing breeds suspicion, or conspiracy theories, more quickly than secrecy, and if nothing else, Musk can advance the free speech debate by making clear how and why decisions are made.
But process only takes you so far. Decisions must still be made. All other things are never equal. Every balance involves weighing what matters most before you start balancing. Who decides has everything to do with what is decided. The rule of law is inevitably in the hands of men and women.
In making these decisions, in responding to Congress and the courts, Musk will inevitably be at the center of a new body of law — an evolving international common law for free speech in the metaverse’s town square.
It is a challenge as great as any leader faces.
— Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to read previous columns. The opinions expressed are her own.