Wednesday, May 27, 2020

Twitter's Speech Isn't "Stifling Free Speech"

By Eugene Volokh - May 27, 2020 at 12:12PM

[1.] But such labeling by Twitter isn't stifling free speech—it's Twitter management exercising their own free speech: They are letting him speak, but responding to the speech with their own. That's their First Amendment right, just as it's his First Amendment right to criticize them.

Now if they did take down his post, then one could argue that would be stifling free speech. It wouldn't be a violation of the Free Speech Clause, because Twitter is a private company. But free speech is a broader idea than just the freedom from government suppression; one could sensibly say that a private entity is undermining free speech in various ways, especially when the entity promotes itself as a forum for public discourse.

If Twitter, for instance, started taking down pro-animal-rights statements or anti-war speech or anti-transgender-rights advocacy or criticism of the Chinese government, I think it would be reasonable to label that as stifling free speech. One can still say that it's defensible for various reasons (perhaps some speech should be stifled, at least by private entities, some might argue), but "stifling free speech" would at least be a plausible label.

Likewise if Google were to close the Gmail accounts of people who publicly expressed such views, or if Hollywood studios set up a blacklist of screenwriters and others who had supposedly expressed, say, Communist views or racist views or what have you. Twitter's decision to block certain posts might be seen as the exercise of its own First Amendment rights as editors (a plausible argument, though not a fully settled one, see Turner Broadcasting System v. FCC); still, it could still be properly labeled as stifling free speech.

But that label doesn't apply to simply responding to speech with speech of one's own. Rather, such labeling (and linking to a response) is the very sort of "counterspeech" that the Supreme Court has (rightly) said is the proper response for speech with which one disagrees.

[2.] The President, of course, has no power to stop Twitter from doing this, partly because he can't create new laws and partly because Twitter's speech is constitutionally protected.

Congress could, as some people have argued, limit 47 U.S.C. § 230, which gives Twitter immunity from liability for posts by its users. In particular, some have argued that platforms should only be immune if they allow all speech by their users (setting aside constitutionally unprotected speech, such as true threats of violence or child pornography), or perhaps only if any restrictions they impose are viewpoint-neutral. Once platforms start excluding certain material based on content or viewpoint, the theory goes, they should become potentially liable (perhaps on some notice-and-takedown basis). I on balance don't buy that argument, but it's worth debating, and it would indeed be in some ways a return to a traditional approach to liability, under which there were some platforms were indeed immune from speech by their users but only when they were legally prohibited from controlling such speech.

But this is beside the point here, since the President's objection here isn't that Twitter is excluding speech—it's that Twitter is including its own speech. And Twitter can't be penalized for such speech of its own.

[3.] Finally, there is a separate objection here: that Twitter is "interfering" in the election by throwing its massive weight behind one particular position. But the First Amendment protects our right to speak, at least under Citizens United v. FEC; nor is there anything improper or unethical in a business expressing its views on something that's being said using its services, and trying to prevent what it sees as a misleading use of its services.

In any event, though, even if one concludes that speech by rich and powerful institutions or individuals that may influence elections is "interference" that should be condemned, it is still not "stifling FREE SPEECH."

(By the way, tt's not clear where the Citizens United dissenters would have drawn the line between newspaper corporations, which they said do have a First Amendment right to speak about candidates, and other corporations, which they said don't have such a right. It's therefore not clear which side of the line Twitter would fall on—recall that Citizens United was a video production company, and the dissenters would have ruled against it. But their position didn't prevail.)

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