THOMAS MCARDLE was a White House speechwriter for President George W. Bush and writes for IssuesInsights.com.
Thomas McArdle
Ownership Versus Opinion Musk forestalls the free market versus free speech war
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lon musk, the world’s richest entrepreneur and a Renaissance man who builds and flies spacecraft, brought electric cars closer to practicality than anyone had before, and skewers the left with the immunity of someone who can’t be pigeonholed as a right-winger, just spent nearly $3 billion making himself Twitter’s largest shareholder. Musk has been both an ardent user and a harsh critic of Twitter, and he means to lessen the platform’s shameless “wokeness,” which has extended as far as kicking President Donald Trump off the platform despite his close to 34 million followers during the final weeks of his presidency, and suppressing a New York Post story on Hunter Biden’s corruption that could have turned the 2020 election. The odds are that Musk will succeed, at least to some extent. But if he does, it will do much more than improve Twitter. He’ll have become the great peacemaker, preventing, for the time being, war between the U.S. government and Silicon Valley. Republicans and Democrats alike are spoiling to foist the heavy regulatory hand of the state on social media’s irresponsible speech restrictions, either through imposing federal rules or forcing the massive tech companies to split into pieces. Musk may defuse what would be a First Amendment disaster. As powerful as monster firms such as Facebook and Google have become, they’re still private businesses; no one has to agree to, for example, Instagram’s terms of service and become a member. Life can actually be lived without these cyberspace platforms, most of which didn’t exist a generation ago. As outrageous as Twitter’s ideologically driven ban of Trump was, it’s tantamount to a prominent newspaper
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deciding not to run an elected leader’s op-ed column or letter to the editor. For the government to require that private electronic venues not exercise censorship of ideas, as disgracefully unhealthy for public discourse as that policy may be, is for it to trample on private property rights in an era when private ownership has never been under greater attack from ever-expanding government.
Private property rights pitted against free speech rights, with the federal government poised to interfere in both areas, is a predicament in which the American people should never have found themselves. Compare what social media firms do with a private citizen or business loaning or renting someone a pen and paper or a bullhorn or a computer. If he decides to take back his property because he doesn’t like what his client is using his property to write or say, can that really be construed as a violation of the Constitution? Or say you let people take to a soapbox on your land, with cameras transmitting the content far and wide; would you be trampling the First Amendment if you showed someone off the acreage that you own because you found their expressed opinions to be odious? Obviously not. But the Supreme Court has declared the internet to be a public square. In the unanimously decided Packingham v. North Carolina in 2017, Justice Anthony Kennedy wrote, “While in the past there may have been difficulty in identifying the most important places (in a spatial sense)
for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” In reality, the computer user is relying on the cooperation of others, many of them located far away. The internet is really a global free market. Madeleine Burnette-McGrath, writing in the Ohio Northern University Law Review in 2019, pointed out that “most restrictions on speech on the Internet do not emanate from the government, but from private corporations that own and regulate users of their social media sites.” She wrote that the Packingham ruling “adopts a new avenue for government regulation” in the realm of speech. In the landmark, unanimous 1964 ruling in New York Times Co. v. Sullivan, which pertained to the libel of public officials, liberal Justice William Brennan might have been talking about the suppression of the Post’s Hunter Biden story based on Twitter’s contention that it was misinformation. “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions ... leads to a comparable ‘self-censorship,’” he said. Brennan noted that such a government rule “dampens the vigor and limits the variety of public debate.” Today, instead of a critic, whether a media outlet or an individual citizen, fearing a libel suit, he fears being canceled by social media platforms, and he may self-censor to avoid that. Private property rights pitted against free speech rights, with the federal government poised to interfere in both areas, is a predicament in which the American people should never have found themselves. Elon Musk changing Twitter from the inside may only delay a conflict that, no matter which side wins, ends with free citizens losing.
