Three Bad Arguments Against Improving Free Speech On Twitter, And The Only Such Argument That Actually Matters
On April 12, I published an open letter responding to Elon Musk’s question: What should be done to improve the state of free speech on Twitter? The response I received was remarkable, and I am very grateful that many of you found it useful.
Since its publication, my letter has provided me with many opportunities to have lively and interesting discussions about the state of free speech. Most of those conversations were wonderful . . . and some went way off the rails. Which gave me an idea. Since it appears that many of you are interested in free speech, and may be involved in similar conversations, it might be useful to identify the arguments I’ve heard against Elon Musk’s desire to improve free speech principles on Twitter, and explain how such arguments can be defused.
With that, I give you three bad arguments against improving free speech on Twitter, and the only such argument that actually matters.
Bad Argument #1: Free Speech Is an Illusion
The Gist of the Argument: It doesn’t matter whether people have the right to free speech, or whether a platform like Twitter has terms of service and polices that align with free speech principles. Money, fame and power buy speech, and so long as we provide bigger platforms to those with power, free speech is an illusion that serves the aims of the powerful by mollifying the rest of us into complacency.
Why This Argument Is Way Off Point: This argument fundamentally confuses entitlement to a platform, with both the legal right to free speech and broader free speech principles such as tolerance for opposing views and civility. It is of course true that money, fame, and power can provide for a larger platform, but that is besides the point.
What this argument boils down to is a backdoor attempt to argue for some form of egalitarian utopia, in which every citizen’s voice is heard equally. That is a lovely sentiment, but one that fundamentally misunderstands human nature. Steven King is a famous writer, people love to read his work. He is richer than me, and his platform is far bigger than mine, as a result. There is no injustice there, merely people making free choices in a free society. I am not owed a larger platform because other people have one. My speech is not restricted because my platform is smaller—my right to free speech is intact. Nor would any realistic changes to the way a platform like Twitter promoted free speech principles make me suddenly as popular or loud a voice as King’s. Not only is that ok, it is desirable. We want people to have the freedom to make choices, and the result of free choices will be uneven distributions. Not all music or books are popular, that is not a free speech problem.
Worse, this argument’s cynical view of the importance of free speech (both the legal right and the social principle) is permissive of the most disastrous censorship. If they believe that free speech is an illusion, surely they also believe that it can be sacrificed in pursuit of other values they believe are more important. It is the worst form of ingratitude and short sightedness to live in the modern West, the most free and fair society which has ever existed, and decry the importance of free speech—which you are only permitted to do because the rest of us value it. That said, I will defend their right to do so, because I don’t believe that free speech is an illusion.
Short Form Counterargument: If free speech is an illusion, then you wouldn’t mind being censored yourself? Or are you saying that we all need to have equal platforms. For example should everyone should be forced to listen to all music equally. Surely Rihanna doesn’t deserve a bigger platform simply because people like her music, right?
Bad Argument #2: Twitter Is A Private Company and Can Have Whatever Terms of Service It Wants
The Gist of the Argument: The First Amendment only limits the power of the government to limit speech. Private companies, such as Twitter, are not bound by the First Amendment, and are essentially free to limit speech however they see fit in their terms of service. If you don’t like it, don’t use the platform. This is a trivial issue.
Why This Argument Borders On Bad Faith: No one who takes this topic seriously has argued that Twitter is regulated by the First Amendment, so there is no need to get into that. Access to the broader platforms provided by social media, however, is no small concern. If it were, then surely no one would care about whether people are spreading misinformation about COVID-19 or elections on social media, and no one would passionately discuss whether hate speech is spreading on such platforms. Certainly, if this issue were irrelevant, there wouldn’t be considerable financial and political interests in the question of who gets to broadcast their views on such platforms? Surely, the former President of the United States Barack Obama would not have given a speech on April 21 of this year regarding the “disinformation problem” on social media.
This issue is clearly a big deal. How to balance free speech principles with the potential harms caused by malicious, hateful, or simply false speech is a serious question worthy of consideration. To try and sidestep it by saying it isn’t a First Amendment issue is a poor excuse at constructing a strawman.
Short Form Counterargument: So then surely you would have no issue if you were banned for hate speech right now, even though you didn’t say anything hateful? If that seems unfair to you, then maybe the question of who gets to decide what is permissible to say online is actually important to you after all.
Bad Argument #3: Elon Musk Cannot Be Trusted With So Much Power
The Gist of the Argument: Elon Musk is an unknown quantity. He talks a good game about free speech, but if he were to have total control of Twitter, the results could be worse than the status quo.
Why This Argument Is Interesting, But Off Point: I don’t know Elon, and suspect none of the people arguing about this point do either. We are all making assumptions about what he might do, and working off incredibly limited information. That said, history teaches that anytime a small group has power over free speech, it tends to end badly. So to that extent, the point is well taken. If Elon Musk, or his inner circle, started making decisions about what speech was permitted in a vacuum, it is likely that the results would be problematic no matter how well intentioned they were. We are all blind to our own biases.
I accounted for this issue in my letter by arguing that Musk should create open processes by which the public can become involved in how Twitter’s free speech policies are formed, create a “Twitter Court” which would adjudicate bans and similar issues, and provide the public with access to records of such proceedings. The point was to create transparency, process, and trust—defusing the risk of any small group becoming partisan censors. I would also be fine with Twitter’s current leadership enacting such proposals, but have seen no indication that they are open to such suggestions.
In short, a Musk takeover could be wonderful or a disaster. We can’t know that for sure, but I would bet on the former. Either way, it is an opportunity for change, and that is what we should be discussing.
Short Form Counterargument: This isn’t about Elon Musk. This is about the opportunity to improve free speech on Twitter. The current board of Twitter, doesn’t seem interested in making improvements, so I for one welcome an alternative.
The Only Argument That Matters: Free Speech Can Cause Harm
The Gist of the Argument: Free speech can be harmful. Yelling fire in a crowded theater can cost lives in the ensuing panic. Inciting a crowd to violence can lead to riots. Using hate speech can harm people emotionally, and promote a culture of intolerance and cruelty. Totally unregulated free speech has been tried in the dark corners of the internet. Those of us who were early adopters of the web remember unmoderated chat rooms, full of predatory-sexual behavior, hate speech, and chaos. Why on earth would we go back to that? Worse, now there are sophisticated parties, using bot accounts and manipulating algorithms to spread misinformation. We need more regulation of speech, not less.
Why This Argument Is Partially Correct, But Does Not Justify Twitter’s Current Policies: Ultimately, every argument against free speech is about the harm that speech could cause. When I was a child, conservatives tried to censor Eminem because they believed that he was too vulgar. Their concern was that his music might harm young people and the social fabric. Today, there is widespread concern that hate speech causes trauma and creates a hostile environment for the marginalized. Fair enough. There is no way to dispute that free speech can cause harm. It certainly can.
This is why all countries, even the U.S., have limits on free speech, and why Twitter will need limits as well. Ultimately, people’s interest in the freedom to say what they want must be balanced against our collective interest in security and safety. The problem is that people tend to have different answers as to how that balance should be struck. Some want it to be more protective, others less. Differences of opinion are inevitable. Given that, if any group of like-minded people take the power to control speech for themselves, and make such decisions behind closed doors, partisanship and censorship is the inevitable outcome. Which is why we should not be asking ourselves “what speech should be allowed” but rather asking “who gets to make that decision, and how are such decisions being made?”
The careful reader will have noticed that in my letter, I did not make any recommendations about what types of speech should or should not be restricted from the platform. This was purposeful. I do not believe that any one person, or any small group of people, should have such power—including myself. The only way to make limits on liberty feel fair is to have those restrictions decided in the open, through a transparent process. Anything less than that risks partisan censorship, and once there is a sense that the game is rigged, all trust is lost and any hope for elevating civil discourse is dashed.
Sunlight remains the best disinfectant. The best way to improve free speech on social media is for the companies involved to voluntarily let the public become part of the process. Let us understand the algorithms and what they promote, let us see and comment on the terms of service before they go into effect, create “courts” that adjudicate bans fairly, openly, and with a publicly accessible record. Transparency builds trust, and with trust, solutions are possible.
-Ryan C. Mullally
Educator, Lawyer, Husband, Father
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