Does The Twitter-verse Smell Musky… or Musty?

What do an electric car company, a space exploration company, and a blue bird social media company all have in common?  If you guessed Elon Musk as their collective owner, then you guessed correctly.  Twitter, very recently, joined the ranks of Tesla and SpaceX when Elon Musk purchased the company for $44 billion. He wanted to make Twitter “a platform for speech around the globe” after not being satisfied with its leadership board and believing they were not advancing that mission.

Twitter, a mini blogging site where people send out “Tweets” of what they are thinking, doing, or feeling, has been under a microscope as of late, particularly with regard to its treatment of certain types of speech.  Some of the criticism started when Twitter began to censor or warn about

Twitter has community guidelines that all users must abide by so that their account does not get suspended. These “Twitter rules” set forth guidelines on acceptable speech that can posted on the platform, as well as terms of engagement with other users. According to the rules that Twitter sets forth, speech that incites violence, content that promotes abuse, specially child abuse, and language that encourages suicide are some of the categories that are prohibited on the website. Additionally, compromising another user’s private information and having a misleading or deceptive identity is also prohibited on the site.  Although this list is not exhaustive, these rules are put in place to protect users from harmful and hurtful conduct.

Harmful and hateful speech is nothing new to our society. From antisemitic speech escalating to what we know as World War II, to anti-Black thoughts and ideologies turning into Jim Crow laws, many different groups have felt the repercussions of what widespread hate speech can do. With hateful language becoming more prevalent on the social media website, Twitter began banning accounts that went against some of which included banning accounts that pushed the QAnon conspiracy to those who promoted the “#IStandWithPutin” hashtag.  With many accounts being banned for a variety of reasons, such as sharing damaging news about Hunter Biden to censoring conservative journalists because their views did not align with Twitter’s, social media censorship became a common part of most everyone’s vocabulary. Those who were impacted by accounts being suspended and who felt that they were being silenced began to speak about their disdain with the social media platform. That is when Elon Musk stepped in.

Musk made his intentions clear from the start: he was against “censorship that goes beyond the law.” In other words, Musk wants to allow any speech that is protected by the First Amendment on the platform.  He believes that essential matters should be debated on Twitter because “[f]ree speech is the bedrock of a functioning democracy.”  Prior to acquiring Twitter, Musk made it clear that he would reinstate the former president’s account, among other suspended accounts in the name of free speech. Musk believes that in order for a society to be thriving, speech must not be restricted, especially on a platform that is widely used all around the world. While the concept of free speech is great and fundamental to American life, there is slight confusion as to whom and to what it actually applies

To Whom and to What The First Amendment Actually Applies

The First Amendment to the United States Constitution provides “Congress shall make no law… abridging the freedom of speech.”  Through the incorporation doctrine, the Bill of Rights, which is the first 10 amendments of the Constitution, is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. This means that state governments and government actors are also not allowed to pass legislation or act in a manner that will infringe on people’s speech, or compel anyone to engage in certain speech.  For example, North Carolina cannot pass a law that compels students in public schools to say the Pledge of Allegiance every morning. Here is the catch: the First Amendment does not apply to private citizens and corporations, such as Twitter.  The Constitution ensures that private citizens have a set of protections that cannot be infringed upon by the government only; it is silent in regard to private citizens infringing on the rights of other private citizens, meaning those individuals and corporations are free to regulate their workplace, employees, or even their social media platform as they please. But, there are some categories of speech that the Constitution does not protect.

A doctrine that is voided by the Constitution is viewpoint discrimination.  Viewpoint discrimination occurs when the government, or a government actor, censors or restricts speech based on the subject matter that is being spoken or expressed.  In Rosenberger v. Rector and Visitors of the University of Virginia, the University of Virginia refused to provide funding to a publication solely because it expressed views in relation to a higher deity.  The Court held that refusing to provide funding based on the content of the message of the publication was viewpoint discrimination and strictly prohibited. It went on to say that “when the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.  Viewpoint discrimination is thus an egregious form of content discrimination.  The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

What is not explicitly stated in the Constitution, but deemed law through Supreme Court precedent, is the area of unprotected speech.  Unprotected speech is speech that falls outside of the protection of the Constitution due to the nature of the language. This category consists of obscene material, child pornography, fighting words, true threats, defamation, and commercial speech. The Supreme Court in Chaplinsky v. New Hampshire further elaborated on the “fighting words” category, stating that that there are no constitutional protections for words that “by their very utterance inflict injury or intent to incite an immediate breach of the peace.” If the speech is not likely to cause imminent injury, then it is likely to be protected by the Constitution and not deemed “unprotected.”

Cohen v. California and R.A.V. v. St. Paul are U.S. Supreme Court speech cases that further elaborate on the unprotected speech categories.  The Cohen case discussed how the government may not criminalize words that it deems to be profane.  The St. Paul case struck down a city ordinance that banned the burning of a cross and the placement of a swastika in public.  This case allowed for the freedom of expression, which ties into speech, no matter how hateful it may seem.  These cases are important not only because they place a limitation on the government and what it is allowed to control, but also because they go back to the words of the Constitution that Congress shall not abridge the freedom of speech.  Just because the words may seem (or actually are) hateful, does not mean that people are not allowed to speak or express them.

Twitter Can Do What It Wants

Because it is a private corporation, Twitter is not required to adhere to the First Amendment. It can restrict speech as it sees fit. Nevertheless, the company has created its own set of rules and regulations on speech that are similar to the rules arising out of the First Amendment and that must be followed by users in order to avoid their account getting suspended . And, although it may be argued that the Twitter rules infringe on a user’s speech, the rules are not an unconstitutional infringement. Twitter put its rules in place to ensure the safety of its users and to stop harmful misinformation from being created and spread.

The primary difference between Twitter’s policies and First Amendment jurisprudence is that Twitter’s rules prohibit more speech. For example, Twitter does not allow for speech that encourages suicide, speech that promotes violates, and sharing content that is excessively gory, which is stricter than the restrictions placed within the First Amendment. The First Amendment typically allows for violent speech, as long the speech is not accompanied by an imminent threat.   Twitter’s rules are clearly stricter than those imposed by the First Amendment, as the government, or its actors, cannot prohibit someone from engaging in, for example, the harassment of another person.  Unlike the government, Twitter is allowed to be biased towards a viewpoint.  It is allowed to censor that which it does not like.  And it most certainty can ban people and corporations who violate company speech policies from the platform.

Twitter and Free Speech Under Elon Musk

Twitter is free to do as it pleases regarding speech on its platform, no matter who does or does not like it.  Elon Musk has made clear that he is not a fan of censorship, so reinstating the accounts that were suspended under the previous leadership board is one of his priorities.  Musk wants Twitter to abide by the First Amendment, meaning it will allow speech on the platform that has previously been banned.  Whether that is good or bad is something that only time will be able to tell, but for now, we can only sit back and see how Twitter will change under Musk’s leadership. Currently, the “Twitter Files” scandal has been unfolding since the end of 2022 and has continued into 2023, with Elon Musk trying to bring to light all the scandals and censorship that happened at Twitter before he took over.

All in all, claiming that Twitter is infringing on our First Amendment right to free speech is not the most accurate statement, but the meaning behind the statement is clear. Our First Amendment is a powerful tool in that it protects us from government overreach while simultaneously protecting groups that may be marginalized by other people. It is important to recognize that Twitter is not encompassed within the First Amendment’s reach, no matter how much some people would like it to be. So, while it may not seem “fair” or “right” that Twitter is censoring some opinions and viewpoints, just having the freedom and ability to do that is empowering.  To remain free from government tyranny, our government must not interfere in the operations of private companies and in the lives of private citizens.  The freedom we are given to say, or not say, as we please is not a right that should be taken for granted and it is crucial to have in a thriving democracy.















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About Dema Alqudwah (3 Articles)
Dema Alqudwah is a third-year law student at Campbell. She is a first generation Palestinian-American and is a native of Raleigh, NC. She went to NC State University where she majored in Political Science and minored in Human Biology. In her free time, she loves spending time with her Goldendoodle, Mace. She hopes to one day pursue a career in family law.