Notice And Comment: Let's Talk Twitter
What are the implications for free speech of an Elon Musk takeover?
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Call it the deal that launched a thousand op-eds. Since Monday’s news that Twitter agreed to sell itself to Elon Musk for $44 billion—or $54.20 a share, a 38 percent premium over the company’s share price before Musk revealed his large stake—it seems like every pundit in the country has been opining on the implications of this transaction.
The deal was certainly big news in the world of corporate law, given how much work it has created for leading law firms. Wilson Sonsini, longtime corporate counsel to Twitter, advised the company itself on the transaction, while Simpson Thacher advised the board. Elon Musk was initially advised by McDermott Will & Emery, which I noted was an unusual choice, but then switched over to Skadden Arps, one of the usual suspects in the world of billion-dollar public M&A, to close the deal.
In the world beyond Biglaw, folks are much more focused on what an Elon Musk-owned Twitter might mean for free speech. Now, the sale is by no means a done deal; several risk factors could derail it, and Twitter’s share price, which closed at around $49 on Thursday, suggests significant investor concern that the deal won’t close. But with a merger agreement in place, Musk’s acquisition of Twitter is probable enough to merit discussion.1
What has Musk said about his plans for Twitter? In a statement, he emphasized the importance of the platform for free speech:
Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated. I also want to make Twitter better than ever by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans. Twitter has tremendous potential—I look forward to working with the company and the community of users to unlock it.
In a recent TED talk, Musk made additional comments that shed light on how he’d run Twitter (collected and highlighted by Axios):
“Is someone you don't like allowed to say something you don't like? If that is the case, then we have free speech. It's damn annoying, but that is the sign of a healthy, functioning free speech situation,” he said.
“If it's a gray area, I would say let the tweet exist. In a case where there's perhaps a lot of controversy, you don't necessarily promote that tweet. I'm not saying I have all the answers here, but I do think we want to be very reluctant to delete things, and just be very cautious with permanent bans—timeouts, I think, are better.”
And, of course, Musk has articulated his vision for Twitter on—where else?—his Twitter feed, which has almost 89 million followers:
Based on these and other statements by Musk, the general consensus is that he will institute less aggressive moderation policies—and maybe even allow certain prominent figures to return to the platform, such as former president Donald Trump.2
Given my own strong pro-free-speech views, I’m cautiously optimistic about a Musk-owned Twitter—a minority opinion among the chattering classes, where hand-wringing is the order of the day. While I recognize that free-speech absolutism, i.e., zero moderation, is neither possible nor desirable—and even Musk, by acknowledging that the law imposes certain limits, recognizes this too—I feel the current regime at Twitter has gone too far in squelching viewpoints it doesn’t like.
Megan McArdle puts it well in the Washington Post:
[S]ome amount of moderation is necessary; if platforms didn’t control spam, doxxing, defamation, pornography, and violent imagery, users would leave, or sue. But it does not therefore follow that they must also crack down on vaccine skepticism, people who think that trans women aren’t really women, or media stories about Hunter Biden’s shady business dealings, to name just a few of the viewpoints Twitter has at some point deemed verboten.
Those latter policies weren’t necessary to keep the platform usable for everyone; they were a choice to make the platform more comfortable for certain users, and views. That this was the effect is obvious from the lopsided reaction to the prospect of less moderation. If things were really so evenhanded, the left would not be freaking out, while the right celebrates.
McArdle recognizes the opposing viewpoint—what we’d expect to hear from, say, progressive student activists at Yale Law—and she has a very good response:
Now, one could argue that right-wing viewpoints ought to be suppressed because they are hateful and retrograde and dangerous to democracy. That argument is pretty common. But one could also ask whether it isn’t a little dangerous when a social media platform takes it on itself to define and massage the discourse this way. Maybe even a little … undemocratic.
After all, our deepest political divides can’t be moderated away; they have to be argued through, no matter how unpleasant the prospect, or how much we’d prefer to listen only to our own side. And where can we hash out the hard problems, if not on Twitter, the digital water cooler where the global political class gathers?
Censoring certain views doesn’t make them go away; it just makes them go underground. It’s better to have them out there, in the light of day, so we can see them—and defeat them. We might not be able to convince the extremists, whether or not they’re allowed on Twitter. But if we’re fighting for the hearts and minds of the moderate middle, which is often what democracy boils down to, let’s have that fight out in the open, with all sides able to present their views as persuasively as possible.
To be sure, complexities will undoubtedly arise. For example, Musk says he wants Twitter moderation to track “the law”—but even the law struggles with issues like what constitutes a “true threat” not protected by the First Amendment.
An even more difficult challenge is presented by Twitter’s reliance on algorithms to display some tweets more than others, in accordance with such factors as a user’s interests and past behavior. Isn’t using such algorithms—as opposed to the original model of displaying all tweets from all accounts followed by a user, in reverse chronological order—already inconsistent with free-speech principles? Even if you are technically allowed to tweet something, if your tweet isn’t favored by the algorithms and displayed to other users, it’s the proverbial tree falling in the forest with nobody around to hear it.
The original model of treating all tweets equally, while more consistent with free-speech principles, made for what many would agree was an inferior user experience. And it doesn’t sound like Musk intends to abandon Twitter’s use of algorithms; instead, he has talked about making the algorithms “open source.” But this idea is both easier said than done, in terms of implementation, and no panacea for the practical and philosophical problems presented by algorithmic privileging of tweets.
My prediction is that after Musk & Co. take over Twitter, assuming the deal goes through, they will discover that actually running the platform is much more difficult than critiquing it from the outside—and, as a result, they will implement more modest changes than what Musk envisions right now. But I also think that those changes won’t “ruin” Twitter—and, if anything, might make it marginally better as a forum for free speech.
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Matt Levine, the (brilliant and hilarious) Bloomberg Opinion columnist, believes that Musk “probably will end up owning Twitter within a few months or so”—and given how closely Levine has been following the situation, I have no reason to doubt him. If you want to read just one piece about the business aspects of this transaction, read this New Yorker interview of Levine, conducted by Isaac Chotiner.
Trump told Fox News that he doesn’t plan to return to Twitter and will instead maintain his social-media presence on his own platform, TRUTH Social. But given Truth Social’s troubles and Trump’s history of going back on his word, don’t be shocked if Trump goes back on Twitter, especially if he runs for president in 2024.