Musk Should Choose To Run Twitter Under the Spirit of the First Amendment | Opinion

The widespread progressive reaction to Elon Musk's purchase of Twitter reflects a deep-seated fear of free speech by the hard Left. NAACP president Derrick Jackson epitomized this fear when he proclaimed: "Mr. Musk, free speech is wonderful, hate speech is unacceptable. Disinformation, misinformation and hate speech have NO PLACE (caps in original) on Twitter." But who would get to define such "unacceptable" genres of speech? Well, naturally, Mr. Jackson and others of his political and ideological bent, who currently dominate much of social media and media in general. The desired result by Jackson and others on the hard Left would be "free speech for me, but not for thee."

The freedom to speak freely means the freedom to be wrong and to offend others. The marketplace of ideas should not include "safe" spaces for those who claim to be "harmed" by views with which they strongly disagree. It should include "rebuttal" spaces that permit the offended to reply with better arguments. The answer to "bad" speech is "better" speech that can prevail in the raucous marketplace of speech and counter-speech.

Freedom of speech is anything but free of social costs. It can be costly. It can cause hurt and harm. It can confuse and distort. But what is the alternative? A system that picks and chooses among "acceptable" forms of speech? What is hateful to one group may be acceptable to another. Moreover, banning some forms of unacceptable speech may be hateful to those who are banned. As Justice John Harlan put it in a case involving a man wearing an offensive jacket with the words "f*** the draft" spelled out: "One man's vulgarity is another man's lyric." There is no objective, neutral criteria for defining one person's or group's disinformation, misinformation or hate speech. Such a determination is in the eye—or experience—of the beholder.

Those who fear Musk's proclaimed approach to openness on Twitter have proposed no reasonable alternatives. Selective censorship by invisible platonic guardians—such as currently exists in much of social media—is much worse. To paraphrase Churchill: Free speech may be the worst approach—except for all the others that have been tried over time.

Elon Musk
An EU commissioner warned new Twitter owner Elon Musk he must follow the organization's rules or risk being banned in Europe. Above, Musk at the Satellite Conference and Exhibition in Washington, D.C., on March 9, 2020. Getty Images

To be sure, Twitter is not the government, so it is not bound by the First Amendment. It may censor if it chooses, but it may also choose not to censor. Several private universities have announced that they would comply with the spirit of the First Amendment, even though they are not bound by it. (Not all have done so, in practice.) That is what Twitter should do: announce that it will ban only material that would not be protected by the First Amendment if the government were to try to censor it.

The First Amendment does allow for some censorship, including direct incitement to violence, child pornography and malicious defamation. But it does not allow censorship based on a singular definition of what it true or what is false. As Chief Justice William Rehnquist once put it: "Under the First Amendment, there is no such thing as a false idea." The Constitution leaves that to the marketplace. Twitter should follow that model.

There are several social media platforms that have come close to the principles of the First Amendment—including Rumble, on which my own podcast, "The Dershow," appears. I chose Rumble precisely because of its anti-censorship policies.

The end result of moving Twitter from its current selective censorship stance to a more free speech policy will result in some very bad things. There will be more hate speech, more misinformation, more personal attacks and more garbage. That's why every social media platform has an off-switch. If you don't like it, don't access it. But don't prevent others from doing so.

Freedom of speech is a dangerous experiment that our Founding Fathers undertook aware of its downsides, which have only gotten worse with the advent of pervasive social media. Elon Musk now has the ability to extend that dangerous experiment beyond the government to the giant provider of much of the information generated today. He has undertaken an enormous responsibility. Let us hope he bears it with the best interests of the world, which he will be serving with his ownership of this powerful tool.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, "The Dershow," can be found on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.