Elon Musk Is Right That Twitter Should Follow the First Amendment

A long history of free-speech jurisprudence backs him up.

An illustration of a bird carrying a scrap of the Constitution
Getty; The Atlantic

Elon Musk, in his effort to buy Twitter, signaled that under his ownership, the company would allow all speech that the First Amendment protects. “By ‘free speech,’ I simply mean that which matches the law,” he tweeted on April 26. “I am against censorship that goes far beyond the law.”

Many commentators were quick to point out that, as a private company, Twitter is not required to follow the First Amendment, which applies only to federal and state governments. And Musk has further been criticized by those who fear that harmonizing Twitter’s content rules with First Amendment doctrine would lead to an explosion of hate speech, misinformation, and incendiary statements, content that Twitter currently moderates.

This deregulatory approach would make Twitter an outlier among the social-media companies; at the moment, Twitter, like Facebook and Google, has chosen to adopt content rules stricter than First Amendment standards. Facebook, for example, prohibits “hate speech” or “attacks,” which it defines as “violent or dehumanizing speech, harmful stereotypes, statements of inferiority, expressions of contempt, disgust or dismissal, cursing and calls for exclusion or segregation.” By contrast, the First Amendment generally protects hate speech unless it is intended, and likely, to cause imminent injury. Twitter’s current definition of “hateful conduct,” although narrower than Facebook’s, still falls short of First Amendment standards.

But Musk’s position is, in fact, convincing. Although private companies are not required to follow the First Amendment, nothing prevents them from doing so voluntarily. And in Twitter’s case in particular, there are strong reasons to believe that the First Amendment should presumptively govern. All four of the main principles that have historically guided the Supreme Court in interpreting the First Amendment apply just as powerfully to social-media platforms as they do to governments.

What are these First Amendment first principles? Justice Louis Brandeis expressed all four in his opinion in Whitney v. California, a 1927 case that involved a woman convicted of making a speech at a Communist Party meeting in support of anti-lynching laws. Here is Brandeis’s crucial paragraph, in which he drew heavily upon Thomas Jefferson’s “Bill for Establishing Religious Freedom”:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

Based on these four principles—freedom of conscience, democratic accountability, discovery of truth, and democratic self-government—Brandeis articulated the First Amendment test that the Supreme Court would later adopt in 1969: The government can regulate speech under the First Amendment only when the speech is intended, and likely, to cause imminent and serious injury. Intent, imminence, and severity are crucial components of this test. (Twitter currently forbids accounts whose “primary purpose is inciting harm toward others” and could continue to prohibit and remove imminent threats, targeted harassment, defamation, and other speech that can be defined as illegal under a rigorous First Amendment standard.)

As Brandeis explained in Whitney:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent.

Brandeis’s test was based on his Jeffersonian faith in the power of what he called “free and fearless reasoning” to expose falsehood through public discussion. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education,” Brandeis wrote, “the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.” As a result, the United States Supreme Court now protects free speech more vigorously than any other judiciary in the world.

Brandeis’s faith in reason—and his four justifications for protecting all speech not intended to and likely to cause violence—is being questioned in our social-media age. Twitter, Facebook, and other platforms have accelerated public discourse to warp speed, creating virtual versions of the mob. These companies are based on a business model that’s now being called “enrage to engage.” Inflammatory posts based on passion travel further and faster than arguments based on reason. Because of this, some critics are suggesting that America’s free-speech tradition should be reconsidered or amended.

These arguments are unpersuasive, and Musk is correct to reject them. In fact, all four of Brandeis’s arguments weigh heavily against any central authority, whether government or Twitter, exercising the power to monitor free speech. Let’s consider each in turn.

1. Freedom of conscience is an unalienable right because people can think only for themselves.

If freedom means anything, it is the freedom to “develop our faculties,” Brandeis wrote in Whitney, by which he meant our faculties of reason and deliberation. Brandeis and Jefferson rightly believed that freedom of conscience is, by definition, an unalienable right, one that can’t be surrendered or alienated to government or private actors, because our opinions, as Jefferson wrote in the draft of his Virginia Bill for Establishing Religious Freedom, “follow involuntarily the evidence proposed to [our] minds.” We can’t give anyone—presidents, priests, teachers, or social-media magnates and their content monitors—the power to tell us what to think, even if we wanted to, because we are endowed as human beings with the capacity to reason and therefore can’t help thinking for ourselves. And a crucial element of thinking for ourselves is deciding for ourselves what evidence is proper for us to consider. Once a public or private regulator gets in the business of deciding which opinions are true or false, or what kind of information is good for people to access, that regulator infringes on the right of all individuals to form opinions with what Jefferson called “the illimitable freedom of the human mind.”

2. Free speech makes representatives accountable to We the People.

As Brandeis wrote, in a democracy “the deliberative forces should prevail over the arbitrary.” This requires people to be able to speak truth to power. The right of the people to criticize all political figures, and the right of political figures to communicate with the people, is crucial to a functioning democracy. Jefferson and James Madison attacked the Alien and Sedition Acts of 1798, which criminalized criticism of the Federalist president John Adams, but not of the Republican vice president Thomas Jefferson, on the grounds that favoring some politicians over others infringed on people’s right “of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

For this reason, Musk is correct to question lifetime bans of politicians such as Donald Trump, which are administered in a way that discriminates based on viewpoint, which First Amendment doctrine explicitly forbids. Trump has been banned permanently from Twitter while other leaders who have tweeted similarly inflammatory statements that arguably fall short of the legal standard for incitement have not been deplatformed, such as Ayatollah Khamenei’s tweets calling for the eradication of Israel. The possibility of viewpoint discrimination inherent in giving social-media platforms the power to ban some public officials but not others means that Musk is right to embrace the position that the new Facebook free-speech advisory board has reached as well: Temporary time-outs are acceptable, but lifetime bans are not.

3. Free speech is the best way to ensure the “discovery and spread of political truth.”

Brandeis and Jefferson had faith in the power of reasoned deliberation to distinguish truth from error over time. As Jefferson put it, “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” At the moment, Twitter empowers its content monitors to flag “misinformation,” defined as tweets that lack “context.” But this vague standard has been applied to take down posts that later turned out to be true. Referring to Twitter’s decision to suspend the New York Post for tweeting articles about Hunter Biden that eventually proved to be accurate, Musk rightly tweeted that “suspending the Twitter account of a major news organization for publishing a truthful story was obviously incredibly inappropriate.”

Ever since the English philosopher John Milton, in Areopagitica, denounced the censorship of books as inappropriate because identifying censors infallible enough to consistently and reliably distinguish truth from error would be impossible, free-speech defenders have recognized that truth must ultimately emerge bottom-up from public discussion among the people, rather than top-down from a paternalistic (and possibly self-interested) regulator. Free citizens in a liberal democracy shouldn’t trust any centralized authority—public or private—to make decisions about what books, music, and other content they can safely be exposed to.

4. Free speech allows the public discussion necessary for democratic self-government.

Jefferson and Brandeis believed that in a democracy, all citizens have an equal right and responsibility to exercise their freedom of conscience. When social-media platforms presume to decide in advance what sorts of political candidates or information are safe for the people to evaluate, they deny the people their right to make that decision on their own. In the process, they weaken the public’s ability to make the political choices that are the foundation of a functioning democracy.

Elon Musk’s position that Twitter should abide by the First Amendment is a radical one—at the moment, no other major social-media platform, with arguably the exception of Reddit, has chosen voluntarily to embrace First Amendment standards. But for the reasons Jefferson and Brandeis recognized, Musk is entirely correct. It doesn’t matter whether the president or a prominent social-media company is presuming to tell us what to think or restricting the information we receive in the interest of protecting us. In the end, all of us have a right and a responsibility to “think as [we] will and to speak as [we] think,” as Brandeis put it. In other words, we have no choice but to think for ourselves.