Written by: Vedna Puskur
Edited by: Sean Tonra
CNN
Among layoffs and bankruptcy claims, Elon Musk faces heavy criticism for the current state of Twitter after his takeover in late October 2022. Back in April 2022, Tesla and SpaceX CEO Elon Musk purchased 9% ($2.9 billion) of Twitter’s stock (Associated Press), becoming Twitter’s largest stakeholder. Many assumed that Musk’s motive was due to a 2018 agreement brought by the S.E.C. (Securities and Exchange Commission) stating that Musk intentionally drove up the prices of Tesla stock by tweeting that he had enough money to take Tesla private (S.E.C.). Musk had been open about his discontent with the agreement, contending that the SEC is infringing on his First Amendment right to free speech. After turning down a seat on the board of shareholders in exchange for not purchasing more than 14.9% (Bond) of stock, Musk turned to Twitter, writing to his at-the-time 82.1 million followers, of his intention for a hostile takeover, putting in a bid for the Twitter stock he does not own at $54.20. While the rest of the shareholders employed the “poison pill” technique to stop a hostile takeover (Duffy), Musk was able to purchase Twitter at $44 billion to take it private on October 27, 2022, after trying to back out of the deal in July 2022 (Wile). Upon completing the deal, Musk fired numerous Twitter executives, including Chief Executive Officer Parag Agarwal, Chief Financial Officer Ned Segal, Legal and Policy Executive Vijaya Gadde, and General Counsel Sean Edgett, along with cutting 50% of Twitter’s workforce across all divisions (Conger).
After advertisers paused rolling out ads on Twitter over the spread of misinformation and hate speech that would escalate under Musk’s ownership, Musk resorted to monetizing the verification check to recoup the lost money (Mac). This policy backfired almost immediately; the blue check indicated the authenticity of high-profile public figures on Twitter and led to users trolling Musk by impersonating him, leading to their accounts being suspended. The subscription service for the verification check was paused on November 11 (Ghaffary). Musk’s belief in absolute free speech was seen as an opportunity for trolls, leading to a 500% increase in the use of the n-word following his acquisition of Twitter (NCRO), fueling the bankruptcy claims surrounding his ownership and the withdrawal of advertisers. On election day, misinformation on fraudulent voting due to malfunctioning voting machines in Maricopa County, Arizona reached Twitter’s trending page, alongside other baseless claims of voter suppression (Hsu).
Musk’s absolutist belief in the right to free speech within social media and disapproval of content moderation had revived the debate of whether free speech can truly exist in social media. The claims regarding free speech in social media levied by Musk are not new arguments. From the inception of the Internet and social media, content moderation has been a critical component of the spread of ideas on the internet. Content moderation is where material uploaded by users to a platform (social media, a website, etc), undergoes a “screening” process where the material is checked to not have violated the terms of service (TOS) or rules that a platform has placed. The moderation process often eliminates offensive or graphic content, like those demonstrating ideas of racism, discrimination, or extreme violence (Klonick). Twitter, along with other social media platforms, has ramped up its content moderation since the Trump presidency. Former president Donald Trump, along with other far right-wing individuals such as political commentator Milo Yiannopoulos and Congresswoman Marjorie Taylor Greene, have been banned from Twitter for violating its policies of Twitter. In the case of Donald Trump, it was for the “risk of incitement of violence” after the storming of the Capitol in 2021 (Telford). Twitter had also added spreading misinformation regarding the COVID-19 pandemic as another reason for being suspended or banned (if tweeting misinformation repeatedly), as in the case of Congresswoman Greene. While the conservatives and those on the right claim that social media is “anti-conservative” and obstructs their right to free speech, studies have shown that social media boosts their views, and does more good than harm (Guynn).
The legal background to free speech in social media debate takes root in the First Amendment of the Constitution. The public forum doctrine is defined as, “an analytical tool used in First Amendment jurisprudence to determine the constitutionality of speech restrictions implemented on government property” (Hudson Jr.). In application, this doctrine has only recently begun to be seen in the context of internet law. In 2017, the Supreme Court unanimously decided in Packingham v. North Carolina that a North Carolina law prohibiting registered sex offenders from using social media violates the First Amendment (SCOTUS). In his majority opinion, Justice Anthony Kennedy noted social media as a form of the “public square,” a space integral to the spread and communication of ideas. A year later, the 2018 case Knight First Amendment Institute v. Trump explored whether Donald Trump was allowed to ban other viewers of different political ideologies than his from percent on Twitter. During his presidency, Trump utilized his personal and POTUS Twitter account to communicate important news regarding his official actions ultimately. The US District Court for the Southern District of New York determined that because of then-President Trump’s public profile, blocking individuals of differing views was illegal (Congressional Research Service). As social media companies remain private and not in government ownership, the consensus amongst most legal scholars is that the companies are in charge of regulating as they see fit. The emergence of the Internet and social media as a mode to spread information has provided constitutional challenges to the First Amendment that remain to be resolved. Ultimately, the situation is bleak and Musk has a long road ahead of him if he intends to maintain control of Twitter.
[The views expressed in this article are those of the author and the author alone; they do not necessarily represent the views of all members of the RULR Editorial Board and Rutgers University]
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