August 9, 2022

Aurich Lawson | Photo by Jim Watson/AFP via Getty Images

Elon Musk has claimed he is buying Twitter in order to protect free speech. But what does Musk mean by “free speech”? Musk provided a somewhat vague answer in a tweet on Tuesday, one day after striking a deal to buy Twitter for $44 billion. (The sale to Musk is pending and needs shareholder approval to be completed.)

Musk’s statement, which he made the pinned tweet on his Twitter profile, said the following:

By “free speech,” I simply mean that which matches the law. I am against censorship that goes far beyond the law.

If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.

Twitter has First Amendment right to moderate tweets

There are multiple ways to interpret Musk’s statement as it relates to United States law, particularly the First Amendment. One interpretation is that Musk doesn’t need to change Twitter at all to prevent “censorship that goes far beyond the law.”

The First Amendment says that “Congress shall make no law… 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.” The wording prevents the government from restricting speech, but courts have ruled that it does not prevent private companies from doing so.

In fact, judges have ruled that private companies like Twitter have a First Amendment right to moderate content. Both Florida and Texas tried to enact laws that would force social networks like Twitter and Facebook to scale back their content moderation. Judges blocked both state laws from taking effect, ruling that the laws violate the companies’ First Amendment rights to moderate their platforms.

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Free speech laws vary widely by country

In that sense, Twitter’s content moderation—including restricting tweets and banning certain accounts—already “matches the law” on free speech in the US. But Musk clearly thinks Twitter’s content moderation is often a violation of free speech. His statement that free speech on Twitter should “match the law” may thus mean he thinks Twitter—like the US Congress—should not impose rules and policies that Musk deems to be “censorship.”

US law doesn’t say that Twitter must avoid such rules and policies, so Musk seems to want free speech that goes beyond what US law requires. Musk could achieve his goal by changing Twitter’s policies on what types of content are banned and by changing the algorithms that Twitter uses to promote or limit the visibility of certain tweets.

Of course, free speech laws vary by country, with the US being notable for not having many government-imposed limits on people speaking their mind. Twitter faces different laws around the world—China blocks Twitter, for example. In Europe, Twitter will face a new set of rules on moderating illegal and harmful content.

Musk’s statement that “if people want less free speech, they will ask government to pass laws to that effect” doesn’t match the reality of countries that impose significant limits on free speech. Repressive governments that highly restrict speech generally aren’t doing so because the people they govern have “ask[ed] government to pass laws to that effect.” Examples include China’s extensive Internet censorship system and Russia’s crackdown on news coverage of Putin’s invasion of Ukraine.

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Musk recently suggested he would defy governments that demand speech restrictions, writing that “Starlink has been told by some governments (not Ukraine) to block Russian news sources. We will not do so unless at gunpoint. Sorry to be a free speech absolutist.”

But Musk’s new statement defining free speech as “that which matches the law” suggests a different approach in which he’d be willing to restrict speech in any country where the government requires him to do so. Using Musk’s explanation of free speech, a government law that prohibits certain kinds of speech is just “the will of the people.”