Laywer Up: Musk’s purchase of Twitter puts free speech to the test

When Elon Musk acquired Twitter in October, his supporters celebrated the $44 billion purchase as a victory for “free speech.”

Musk himself explained that he was motivated to purchase the platform because he believed it was “important to the future of civilization to have a common digital town square, where a wide range of beliefs can be debated in a healthy manner without resorting to violence.”

He appeared to be promising to end Twitter’s practice of regulating tweets and accounts that violated Twitter’s user policies — a practice that culminated most famously in the suspension of then-President Donald Trump’s account in January 2021. After the purchase, however, Twitter quickly applied new user policies to suspend accounts of people and journalists, leading some critics to accuse Musk of free-speech hypocrisy.

The heightened public attention on Twitter’s content-moderation policies raises interesting questions. Is there a constitutional free-speech right for a person to say whatever they want on social media without being suspended? Should there be such a right?

The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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 First Amendment has long been interpreted to prohibit government from unduly interfering with the free speech of citizens (subject to various exceptions, the most famous example being yelling “fire” in a theater). By contrast, private individuals and companies are generally understood to not have a First Amendment obligation to protect free speech.

Applying that traditional distinction between public and private actors, courts have decided that the First Amendment does not apply to actions taken by Twitter against its users. In May a federal court dismissed a lawsuit filed by Trump challenging Twitter’s suspension of his account. The court observed that Trump’s lawsuit “was not starting from a position of strength” because “Twitter is a private company, and the First Amendment applies only to government abridgements of speech.”

Within the past year multiple federal courts also have dismissed First Amendment claims brought by people suspended by Twitter for violating COVID-19 misinformation policies on similar grounds. Those court decisions suggest that there is not a First Amendment right for a user to say whatever they want on a private social media platform.

Nevertheless, we can expect continued debates on whether, and to what extent, free-speech principles should be extended to the social media sphere. Social media is a new beast, existing at the cutting edge of ever-evolving technology. The practical effects of social media on people and society are far-reaching, if still not fully understood.

Platforms like Twitter clearly play an increasing role in civic conversation and the exchange of ideas. At the same time, however, they present novel challenges and dangers, including the potential for viral misinformation and unprecedented reach for harmful speech. Put simply, social media communication in the 21st century raises complex issues that are not easily solved.

Although courts have not recognized a constitutional right to tweet, Musk’s controversial foray into Twitter shows that the conversation about free speech in the age of social media is probably just getting started.

Ian Wesley-Smith is a partner in Carlsmith Ball LLP’s Hilo office and concentrates his practice in the areas of litigation and alternative dispute resolution. He can be reached at iwesley-smith@carlsmith.com.