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Peter Greenwood for the Deseret News

Twitter and the fight over free speech

Can free speech ever really be free?

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SHARE Twitter and the fight over free speech

In the months before Elon Musk took over Twitter, he declared himself a free speech absolutist.

He elucidated his point on that same platform. “Given that Twitter serves as the de facto public town square, failing to adhere to free speech principles fundamentally undermines democracy,” he tweeted last spring. “What should be done?”

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Soon after Elon Musk took over Twitter, he instituted a permanent ban on accounts that impersonated him without clearly identifying themselves as parody.

Win McNamee/Getty Images

For many conservatives, Twitter had become much more than a social media platform. It had become part of a narrative. The narrative — pushed on right wing talk radio, Fox News and, ironically, social media platforms — is that Twitter was part of an informal Big Tech cabal that silences those who dare break from a prescribed liberal orthodoxy. And so it was little surprise that Musk’s purchase of Twitter in October for $44 billion was greeted with glee, even exultation, for many on the right. 

“Without exaggeration — the most important development for free speech in decades,” Sen. Ted Cruz told Sean Hannity of Fox News. Ben Shapiro retweeted Musk with a GIF of popping champagne; Tucker Carlson declared it a moment that might save democracy.

Musk quickly made good on his promise to open up the platform, but he did so by dialing back many of the safeguards that Twitter had put in place to protect against misinformation and disinformation. Mass firings ousted many of the content moderation team responsible for keeping prohibited material off the site. Within hours, use of the n-word spiked 500 percent. Other hate speech rolled in, as users tested their new limits. The identity verification once needed to qualify a user for a blue check mark was scrapped, replaced with an $8 monthly subscription, even as Musk aggressively tried to purge the platform of trolls, bots and other fake accounts. Soon, though, the new owner found his own limit on free speech, instituting a permanent ban on any account that impersonated him without clearly identifying itself as parody. 

At the same time, the conservative narrative that Twitter had been suppressing voices or issues on the right gained support when Musk, working with the journalists Matt Taibbi and Bari Weiss, began releasing internal Twitter memos and policies that pre-dated Musk’s takeover. Dubbed the TwitterFiles, Musk positioned the revelation as a bombshell, tweeting: “teams of Twitter employees build blacklists, prevent disfavored tweets from trending, and actively limit the visibility of entire accounts or even trending topics—all in secret, without informing users.” This assertion, however, was quickly challenged by former Twitter employees, including founder Jack Dorsey, who made clear the practice of “shadow banning” had been announced by Twitter in 2018 and was never kept secret. 

Regardless, the TwitterFiles disclosure added fuel to the fire for conservatives who believe certain stories, like the infamous Hunter Biden laptop story, have been suppressed by Big Tech and media rather than given the scrutiny they deserve. 

By December, roughly a month into Musk’s tenure as owner of Twitter, early speculation that the platform would collapse under his leadership had mostly vanished. On the Tuesday before Christmas, he said he would find a new CEO after millions of Twitter users asked him to step down. Musk had pushed back on the idea that hate speech had increased since he took over, tweeting: “Hate speech impressions (# of times tweet was viewed continue to decline, despite significant user growth!” 

“...Freedom of speech doesn’t mean freedom of reach. Negativity should and will get less reach than positivity.”

Was Musk cryptically admitting that “negative speech” would get its own form of suppression or shadow banning?

As of this writing, it’s too early to tell, but the debate about the future of what exactly free speech means on the platform will continue. As it must: The limits of speech on social media–what Musk has aptly called the digital town square–is one of the most important questions of our time. As Musk himself has put it, free speech is “the bedrock of a functioning democracy.”

The question going forward revolves around one central tension between those who want no guardrails on free speech and those who think platforms like Twitter should police for false or misleading content. I recently talked with someone who is quite high up in content moderation at another large social media company, who said something quite prescient: “You cannot have free speech plus no censorship plus no disinformation all at the same time.” It is a trade-off. Something has to give.

Speaking the truth

Let’s start with a simple question: What is free speech? The First Amendment protects our right not to be censored by the government. This liberty is fundamental to American democracy because it prohibits the government from telling us what we can think or say. Both liberals and conservatives throughout American history have enjoyed the protection of this most basic right. This is not to say, however, that freedom of speech has no reasonable limits. 

Some may reference Justice Oliver Wendell Holmes Jr.’s often-misquoted opinion in the 1919 U.S. Supreme Court case Schenck v. United States, which said that the right to free speech would not “protect a man falsely shouting fire in a theatre and causing a panic,” because that would create a “clear and present danger” to the public. But that opinion was all but overturned in 1969 in Brandenburg v. Ohio, which found that the true constitutional limit on speech was “inciting or producing imminent lawless action.” 

Today, the sorts of speech understood not to be protected by the First Amendment include: fighting words, speech that incites a riot, sharing classified documents, libel and slander, certain kinds of commercial speech (such as fraudulent ads) and child pornography. Even so, such limits must be justified by a public need that is arguably greater than the need for free speech itself, and in a free society these limits are constantly tested.

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Peter Greenwood for the Deseret News

But the protections of the First Amendment do not prevent private citizens (and private companies) from doing as they please. Even if the government cannot censor you, it does not mean that you have (or should have) any protection against a theater owner kicking you out for being disruptive (or whatever reason their freedom of speech might protect), or from Twitter de-platforming you if you violate their terms of service. 

“Cancel culture” is very different from being censored or punished by your government for voicing a dissenting opinion. Consider the recent case of Kanye West, or Ye. After an antisemitic diatribe on Twitter that went viral and caused widespread outrage, the hip-hop artist doubled down on major broadcast networks, including the most watched cable news program, Tucker Carlson. Eventually, due to intense pressure expressed on Twitter and elsewhere, some of West’s biggest corporate partners (Adidas, Gap, J.P. Morgan, among others) severed ties and ended their business relationships with him. Twitter suspended his account. One might view this as a free market response to an odious idea that was not rooted in fact, and trampled on the values of the majority of people who heard it. The people canceled Kanye. The government never laid a finger on him. 

Still, doesn’t any kind of censorship do violence to a fundamental American ideal? What about the larger value of free speech to our society? Shouldn’t all ideas be welcome in the public square? It’s a nice thought, but without some sort of guardrails, speech has the potential to cause real harm. Even a free speech absolutist like Musk won’t tolerate parodies that don’t identify themselves as such and could cause harm to his business or property. Few would justify large platforms spreading lies that cause monetary damages or emotional distress. This is why citizens have recourse in court when they have been slandered or defamed. If this magazine publishes something we know to be false, and it causes harm to a citizen, the magazine would be sued, and if it lost, would have to pay damages.

Further, free speech without limit actually endangers free speech itself. Without content moderation, Facebook and Twitter would devolve into a sewer of pornography, spam, beheadings, terrorism and other odious content. Social media would be chaos. The ideal of free speech is often embodied by the image of a public square where anyone might claim a soap box, attract a crowd and engage them in debate, a free exchange of ideas. But on social media, we often don’t know who is this person claiming the soap box, or if it’s even a person. The avatar we’re arguing with could even be a bad faith actor sponsored by an adversarial government.

Here’s a thought experiment. Imagine a forum where everyone — no matter their underlying motivation or connection to the facts — felt entitled to a powerful megaphone to spread their opinions, lies, hatred and propaganda to as many people as possible. In such an environment, could the truth even be heard? The right to free speech is different than the right to immediate, unfettered access to an audience of millions, no matter the substance of one’s message.

Do you remember that scene in the film “Indiana Jones and The Last Crusade,” where Harrison Ford is at the end of his journey, finally confronted with the holy grail? Except that he can’t tell which one it is because it’s surrounded by more than two dozen fakes. That’s what we’re up against today. If you can’t hide or destroy the truth, you can surround it with lies and disinformation. In the age of social media, disinformation drowns out truth. This is the new censorship.

Danger of disinformation

Conceivably, one might argue that disinformation should be protected speech. Yet this position must confront the reality that in the modern world, information is often used as a weapon of war. Here, we are not talking about misinformation, something that someone authentically believes to be true, even though it isn’t. The real enemy of truth these days is disinformation: strategic, bad faith propaganda intended at the least to pollute the information stream — by getting someone to believe a falsehood — and at worst to incite them to act upon these lies. 

In April 2020, Russian intelligence operatives created and promoted the lie that any Covid-19 vaccines developed in the West would contain tracking microchips. How many people died as a result of this disinformation? We will never know. What we do know is that it was relentlessly amplified on Facebook and Twitter, to the point where — a month later — millions believed it. This of course was just the tip of the iceberg. 

“You cannot have free speech plus no censorship plus no disinformation all at the same time. It is a trade-off. Something has to give.”

Disinformation is designed to exploit the right of free speech. It is weaponized communication that many adversaries of American democracy — both foreign and domestic — have used for their own nefarious purposes. This is at least in part what led companies like Facebook and Twitter to place more content warnings on misleading posts about phony cures during the pandemic and election lies during the 2020 presidential race; some were even removed. As always, when free speech butts up against public harm, someone must make a choice.

Numerous academic studies have demonstrated that mere exposure to disinformation can be harmful and will lead to toxic beliefs in a statistically significant number of cases. The cognitive bias of the “primacy effect,” for instance, means we are more likely to believe and remember whatever we hear first. Likewise, the “illusory truth effect” (sometimes called the repetition effect) makes us more likely to believe something that we hear over and over. These biases are built in. Once disinformation is in the information stream it will have a harmful effect on the general populace, no matter how well it is later debunked. Empirical studies have also shown that lies travel faster than truth. So without content moderation, not only will there be a higher proportion of falsehood in the public sphere, but it will stand a higher chance of going viral. 

The right to censor

In the early days of the internet, service providers like CompuServe and AOL merely hosted content that had been created by others, with little capacity for amplification. But now, nearly half of us get our news from social media companies like Facebook, Twitter, YouTube, Instagram and TikTok, which can promote — through their powerful algorithms — any content they like. What they often like is the most divisive content, which generates the most engagement, whether it’s true or not. It may be time to rethink whether social media companies have moved beyond “hosting” third party content to actively participating in its amplification, by promoting and profiting from material that can be dangerous.

One target for reform is Section 230 of the Communications Decency Act (1996), which is arguably what made the internet as we know it possible. Under this law, internet service providers (ISPs) are treated not as “publishers or speakers,” who create and edit content, but more like distributors or libraries, who cannot be expected to screen for offensive content. But shouldn’t ISPs bear some liability, as publishers do, if their content is false and/or harmful?

It’s important to note that Section 230 of the Communications Decency Act has a second part. Yes, it protects service providers from being sued over third-party content, but it also gives them the absolute right to remove any content they find offensive. This is rooted in the original intent of the law, which was to fight indecent material, such as pornography. After all, should social media companies be forced to host material they find offensive? As private entities, shouldn’t they be free to remove whatever they don’t like? Whether they take something down or leave it up, providers can’t be held legally accountable. 

Consider an analogy. Suppose you were a staunch supporter of freedom of speech and believed that even hate groups had the right to public assembly. Even though you may despise the message of the Ku Klux Klan, you might find yourself defending their right to get a parade permit. But would that require you to hand out flyers at their rally? Certainly not. Refusing to amplify disinformation is not censorship. To say that the government should not be permitted to censor its citizens is one thing. But there’s nothing in the First Amendment that guarantees equal voice in the public square, or that prohibits private companies from acting in the interest of their shareholders, even if this means de-platforming voices that drive away advertisers.

In his powerful dystopian novel “1984,” George Orwell asks us to imagine a society in which there is total censorship, not only of speech but also of thought. As one might expect, this leads to political repression and authoritarian rule. I invite you now to imagine a society that has complete freedom of speech, with no brakes or limits on what might be said — where every lie and piece of disinformation can be amplified to every corner of the globe. Might this not also lead to an authoritarian nightmare, where chaos rules, private and government propaganda is ubiquitous and the populace is manipulated by disinformation? Where people have difficulty telling the truth from fiction? What might happen to free speech — and the quest for truth itself — if there are no guardrails? No content moderation? It would be the Tower of Babel, with information terrorists thrown in. 

How do we fight this? By standing up not merely for the importance of free speech, but for facts and truth itself. Consider the case of Wikipedia. For many years Wikipedia was the butt of many jokes. Every claim was susceptible to editing by anyone with a nutball opinion or a grudge. The good faith efforts of those who wanted to create the most powerful open-access encyclopedia the world had ever known fell victim to special interests, ideologues and disinformation. The “wreckers” had arrived. 

“The primary value of free speech lies in its ability to help us make progress toward truth.”

But Wikipedia got ahead of the problem by deciding to curate its content. According to Susan Gerbic, a longtime editor at Wikipedia, what actually happened was that around 2012 they started to have access to better technical tools, which allowed them to edit faster and more efficiently. Some articles on “controversial” topics were flagged so that any changes would immediately come to an editor’s attention. Other articles were “locked” because they already reflected current consensus.

Were there complaints? Of course. But without such intervention, Wikipedia may have lost its value to the public. Today, even ardent free speech defenders like Jonathan Rauch call Wikipedia a model for the internet. The site remains a bastion of free speech — where anyone can edit virtually any article and all changes are transparent — but vandalism is usually corrected within less than a minute. Wikipedia benefitted from the protection of those who cared primarily about truth and accuracy, to keep it from being overwhelmed by those who had another agenda. 

Truth and how to find it

Some are misinformed and think that we can fight disinformation with something less than content moderation — indeed that this tool is itself censorship. And some of this criticism has come from the left. 

During a recent presentation at the 85th annual meeting of the Association of Information Science and Technology, Shannon Oltmann and Emily Knox borrowed from postmodernists like Jacques Derrida and Michel Foucault to argue that there is no such thing as objective truth and that any assertion of truth is therefore a mere assertion of power, which is ultimately used to oppress marginalized populations. Who are we to say that any particular thing is “true” or even to make the claim that the information stream is “polluted” by disinformation? 

As I listened, I wondered if conservatives who have pushed for a “no brakes” Twitter would be happy with this sort of relativism and capitulation to the idea that truth does not exist or that, even if it does, it is not knowable. And for my friends on the left, who tout science and reason as their lodestar, I would ask: Isn’t the point of free speech to find the truth, rather than merely allowing a forum for everyone to have a voice to speak their truth?

No less a liberal than President Barack Obama once claimed through a spokesman that the solution to disinformation was not “censorship” but to “open things up” and let more voices be heard, so that truth could win out over lies. This is a popular sentiment and sounds very fair-minded and American. The cure for bad speech is good speech. Sunshine is the best disinfectant. In the free market for ideas, truth will rise to the top. Except that it doesn’t.

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Elon Musk’s takeover of Twitter was greeted with delight by many on the right.

Scott Olson/Getty Images

As noted, the idea that “a lie gets halfway around the world before the truth can get its boots on” has been backed up by decades of empirical research. Once disinformation is out there, a certain predictable percentage of people will just believe it, no matter how much it is debunked, no matter what experts may say. Charlatans and other information terrorists like Steve Bannon and Roger Stone have exploited this phenomenon to get their lies out there — preferably first — to create confusion and distrust, not only to convince people that some particular falsehood is true, but also to feed the cynical idea that maybe truth isn’t knowable after all.

Is that what Obama intended? Surely not. Speaking in 2022 at the University of Chicago, he expressed regret over his earlier position and admitted that during his administration he underestimated the problem of disinformation and its threat to democracy.

When government steps in

To protect the right of free speech we must confront the original dilemma framed at the beginning of this essay. One cannot have complete freedom of speech with no censorship and no disinformation, all at the same time. So what should we choose? To take off all guardrails is not merely to mix it up and wait for truth to rise to the top, it’s to create an environment where chaos thrives and truth sinks. One where we are actively choosing disinformation. And the stakes of this choice may be so dire that freedom of speech is endangered, along with many other civil liberties that we’ve taken for granted — and even democracy itself.

In recent congressional testimony, Joan Donovan — one of the world’s leading experts on the problem of disinformation — said this: “The biggest problem facing our nation is misinformation-at-scale. … The cost of doing nothing is democracy’s end.” And the response? U.S. Sen. Chris Coons said, “We don’t want to needlessly constrain some of the most innovative, fastest-growing businesses in the West.” Maybe that is as it should be. Maybe not. 

Do we want the government to oversee content moderation at Facebook and Twitter? To judge from the public’s reaction to President Joe Biden’s short-lived effort to create a “disinformation governance board” — which was aborted after just three weeks — the answer might be no (though its demise was at least partially due to an inability to get ahead of right-wing disinformation about the initiative’s purpose). Biden’s goal was NOT for the board to do fact-checking or regulate speech, but rather to advise the government on how to fight disinformation. That sounds safe enough, but once we open this Pandora’s box, what might happen when there is a change in administration, and we do not like the politics of the new set of “fact checkers” who might use this initiative for a very different purpose?

Countries like Russia and China have already leaned into the idea that the government needs to regulate “disinformation” — and the government gets to decide what that is. In China, censorship is rampant. In Russia, one can be jailed for saying anything “untrue” about the war in Ukraine. But what is true or not is defined by what the Kremlin says is true

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For many conservatives, Twitter, headquartered in San Francisco, is part of an informal big tech cabal that silences those who speak out against liberal orthodoxy.

Justin Sullivan/Getty Images

No matter one’s politics, we must be very careful of removing or eroding government protections of free speech, which includes protecting the right of private actors to decide for themselves how to respond to the speech of others. So should we just “allow” Musk to do as he likes at Twitter? As a private citizen, running a private corporation, can he do anything he wants? Some conservatives may be tempted to answer “yes,” but be careful what you wish for. To wish for radical freedom of speech is to welcome more disinformation. It is to wish for chaos. Is that what conservatives want? Maybe some do. Maybe the disinformers and the Trumpists, who want to continue to spread lies about the 2020 election. But is a complete, unfettered, free-for-all in the information sphere really a conservative value?

The ultimate freedom that is protected by the U.S. Constitution is the right to vote. This is the best of the public square, where all voices may be heard. But democracy itself is now under threat. The chance to find a new market for the MAGA agenda — if not a return of Trump himself — is motivating many who are now cheering Musk’s radical free speech agenda at Twitter. But now is not the time to backslide in the fight against disinformation. Because we are losing. And if we continue to lose, it could take down democracy itself.

History has taught that authoritarian governments — whether Josef Stalin’s left-wing Soviet Union or Viktor Orban’s right-wing Hungary — are swift to crack down on the free speech rights of their citizens, as an essential means to the consolidation of power. If you can control the information sphere, it is much easier to control the population. Propaganda serves its purpose not by convincing a skeptical audience that a falsehood is true, but by asserting its power to dominate reality, which may lead to the cynical idea that truth itself cannot be known. As Hannah Arendt writes: “The ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for whom the distinction between fact and fiction … true and false … no longer exist.” 

Is this the future we may expect, if we do not engage with the problem of disinformation at a scale that is necessary to solve the problem? One hopes not. And we may find strength in the fact that we have conceived this before. No less a liberal and staunch defender of free speech than Orwell recognized the need to get one’s priorities straight. In his book “1984,” he frames the ultimate threat against human freedom not merely as one against thought and expression, but also truth and reality itself. As Orwell once put it, “The really frightening thing about totalitarianism is not that it commits ‘atrocities’ but that it attacks the concept of objective truth; it claims to control the past as well as the future.” 

So what happens when freedom of speech undermines truth? When the weight of disinformation becomes so oppressive — because the information sphere is so full of self-serving liars, trolls, partisans, cranks, nuts and propagandists who share information only when it is distorted to serve their own selfish economic or political interests — that the truth doesn’t stand a chance? As important as freedom of speech is as a virtue all its own, its primary value lies in its ability to help us make progress toward truth. When that is at risk, we must reconsider our options. Do we nurture and protect an environment where truth is more likely to flourish — even if it means deplatforming the liars and the wreckers who are interfering with everyone else’s ability to be heard or to know the truth — or do we roll the dice on Musk’s vision?

Echoing a sentiment that stretches back through American jurisprudence, all the way to Thomas Jefferson and Abraham Lincoln, U.S. Supreme Court Justice Arthur Goldberg once wrote that “the U.S. Constitution … is not a suicide pact.” Neither is freedom of speech. There have to be limits, especially when some are not participating in good faith. We do not have to give the liars and propagandists unrestricted means to do public harm, and that is what we are doing when we refuse to fight disinformation with the best tools available. Indeed, one might even argue that seeking to balance freedom of speech against the need to fight disinformation is a way to enhance, not erode, our civil liberties

In Orwell’s time, the greater threat to truth was censorship. Completely on point, recall that in “1984” Winston Smith was employed as a censor at the Ministry of Truth. Yet today, perhaps the greater threat comes from the uncontrolled flow of disinformation. In a contemporary retelling of the dark future imagined by Orwell, Winston Smith might work at Twitter.  

This story appears in the January/February issue of Deseret MagazineLearn more about how to subscribe.