Should we have free speech on social media?

December 13, 2022 • 11:15 am

Answering the title question, “Yes, I think so.” I’ve argued for a while that, insofar as possible, sites like Twitter and Facebook should hew as closely to the First Amendment as does any government organization, including public schools. This should also hold for private schools, at least as a principle, since if one accepts the many arguments for free speech, there is no relevant difference between public and private venues in their need for free speech—and that includes social media.

Remember, American courts have carved out well know exceptions to the First Amendment—exceptions like no personal harassment or atmosphere of harassment in the workplace, no false advertising, no child pornography, no speech that is intended to incite imminent violence, no defamation, no threats, and so on.  That pretty much covers all the relevant issues, except for “hate speech,” which is now the main reason people want to cut back on First Amendment rights. (I disagree, of course, as the definitions of hate speech are usually “speech that I don’t like”, and at any rate the truly invidious forms are already covered as court-mandated exceptions to First Amendment rights).

In this article from The Dispatch, editor David French (also a contributing writer for The Atlantic), makes the argument I reprised above: stop kvetching about what kind of speech we should have on Twitter: just let ‘er rip according to how the courts have construed the First Amendment. That is, I think, what Elon Musk wanted, but the entire Internet now seems bogged down on endless discussions of how to “moderate” Twitter, combined with endless nonstop demonization of Musk (I have no dog in the pro- or anti-Musk arguments).

This article isn’t too long, but makes a persuasive case for taking moderation of social media (and private universities) to First Amendment levels. Click to read (you may have to start a free account using your email:

I’ll give some excerpts. First, French shows that the Twitter arguments show good parallels with failed college “speech codes”:

A few years ago I was invited to an off-the-record meeting with senior executives at a major social media company. The topic was free speech. I’d just written a piece for the New York Times called “A better way to ban Alex Jones.” My position was simple: If social media companies want to create a true marketplace of ideas, they should look to the First Amendment to guide their policies.

This position wasn’t adopted on a whim, but because I’d spent decades watching powerful private institutions struggle—and fail—to create free speech regulations that purported to permit open debate at the same time that they suppressed allegedly hateful or harmful speech. As I told the tech executives, “You’re trying to recreate the college speech code, except online, and it’s not going to work.”

And I like French’s potted history of College speech codes:

At the risk of oversimplifying history, here’s the short story of modern university censorship. As American universities grew more diverse, a consensus emerged in universities both public and private that schools should strive to create a “welcoming” environment for students and faculty, with particular attention paid to protecting students from discrimination on the basis of protected categories such as race, sex, sexual orientation, and gender identity.

Federal and state laws required colleges and universities to protect students from harassment on the basis of protected characteristics. But schools wanted to go further. They wanted to make sure that students and faculty were protected from psychological discomfort. The speech code was born.

At the same time, however, schools were still eager to proclaim their support for academic freedom and free speech. So the message to the campus community boiled down to something like this—all speech is free except for hate speech. But what was hate speech? The definitions were broad and malleable.

Temple University, for example, banned “generalized sexist remarks.” Penn State University declared that “acts of intolerance will not be tolerated,” and defined harassment as “unwelcome banter, teasing, or jokes that are derogatory, or depict members of a protected class in a stereotypical and demeaning manner.”

One of the worst speech codes I ever read was enacted at Shippensburg University, a public university in Pennsylvania. The policy was remarkably broad: “Shippensburg University’s commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors.”

It doesn’t take a legal genius to realize that these speech rules were so broad that they granted administrators extraordinary power over free speech. Combine that power with the ideological blinders that are inherent to any political monoculture, and you have a recipe for staggering double standards in censoring political and religious speech. I could fill an entire newsletter with stories of such abuses.

Again, private universities are at liberty to restrict speech any way they want, but once they state that they have a principle of free speech, then they must stick by it and can, in fact, be sued for abrogating it. But I see no reason why any private school should restrict free speech.

They can, of course, restrict it in a way that doesn’t disrupt the mission of the university, as by banning loud demonstrations that would deplatform a speaker. French discusses other permissible restrictions.

And so it should be, says French, with social media:

The same message should apply to social media. As a private company, you can choose to become, say, a “progressive social media platform” or a “website for Christian connection and expression” and govern yourself accordingly. But if you hold yourself out as a place that welcomes all Americans, then you’re courting disaster if you depart from the lessons learned from constitutional law.

And that’s Twitter. And I agree.

French also favors “viewpoint neutrality,” which is simply recasting free speech to add that no speech should be banned simply because of “the underlying viewpoint of the speaker.” This rule, and the First Amendment adherence, has of course been adopted by the University of Chicago in its Principles of Free Expression and its Kalven Principles.

After emphasizing that all speech rules should be as clear as possible, because vague or “overbroad” rules can also chill speech, French then recommends three principles for implementing First Amendment guidelines by social media companies:

How does all this apply to Twitter, Facebook and every other large social media platform on the planet? First, it means giving up the quest for a free speech utopia and embracing viewpoint neutrality. There is no way to create any meaningful free speech environment that allows for actual debate while protecting participants from hurtful ideas or painful speech. Executives at Twitter or Meta are no better than college administrators at crafting the perfect speech code. The brightest minds have already made that effort, and even the brightest minds have failed.

Second, it means moderating on the basis of traditional speech limits. Even institutions that embrace viewpoint neutrality will place limits on speech. They’ll have to. If there is one thing we know from decades of experience with the internet is that completely unmoderated spaces can and do become open sewers that are often unsafe for children and deeply unpleasant for adults. Unmoderated spaces can become so grotesque that they’re simply not commercially viable.

“Viewpoint neutral” is thus not a synonym for “unmoderated.” Consistent with viewpoint neutrality, a platform can impose restrictions that echo offline speech limitations. Defamation isn’t protected speech. Neither is obscenity. Harassment is unlawful. Invasions of privacy (doxxing, for example) should face sanctions. Threats and incitement violate criminal law. A platform can say, “Children are present. No nudity.”

It is easy to imagine different rules that make it easier to talk about issues and harder to target individuals. Examples of viewpoint-neutral time, place, and manner regulations that could prevent, for example, some of the worst conduct on Twitter could include limiting or eradicating the quote-tweet function, limiting the visibility of replies to other users’ tweets, or limiting the ability of users to reply or interact with tweets of people they don’t follow.

Third, it means embracing clarity and transparency. Make rules clear. Create an appeals process when users are penalized. No human institution is ever going to apply its rules perfectly, and accountability is necessary. Secrecy in decision-making can impair trust every bit as thoroughly as flaws in the substance of the decisions made.

In the end, French argues—and again I agree—that Musk’s takeover of Twitter should prompt us to rethink the notion of free speech on social media. As French says in his last sentence,

 New platforms can benefit from old principles, and when it comes to managing a marketplace of ideas, centuries of First Amendment jurisprudence can help light the way.

I’m sure some readers will disagree, arguing about Russian bots, hate speech, or other issues. Feel free to weigh in below.

90 thoughts on “Should we have free speech on social media?

  1. This is fine, until Twitter runs up against laws that govern many non-US countries which include most European states. Getting Twitter banned or heavily fined in what should be some of it’s most lucrative markets is a bold move for sure.

  2. See also the technological geniuses at PayPal closing the accounts of those with whom they disagree. We seem trapped between right-wing prophets of hate and nerdy social justice workers determined to remake reality.

    1. Then don’ use Paypal. I don’t. But don’t require the government step in and dictate what they should do as long as they are not breaking any existing laws.

  3. Technically-oriented discussion forums frequently assert “no politics”.

    That makes a lot of sense to me – yet, it conflicts with my current understanding of Free Speech as developed here.

    So I _find_ an outlet for “politics” (thank PCC(E)!). I think it is beneficial because I can get up to my elbows in hard stuff so that people at work or at the family get together don’t (necessarily) need to be subject to hard stuff like might come up here (necessarily).

    Tw1773r though – agreed that it has everything to do with everything, so – it’s different from a technical/specialized forum, in general.

  4. I disagree for the simple reason that unmoderated social media becomes a cesspool. I don’t see a whole lot of difference between private social media sites and WEIT. This place is tolerable because PCC strictly moderates it. Same applies elsewhere on the Internet.

    1. This was exactly my thought.

      In theory, I agree with Jerry. But Twitter, at least, has abandoned all attempt at moderation.

      And, moderation off incitement-type speech is essential, although it is clearly labor-intensive.

      I continue to be appalled at the level of venom on social media. There appears to be a significant slice of our citizenry that revels in anger, finds character assassination entertaining, and is willing to believe bad motives on the part of anyone they don’t like. I don’t buy the “both sides do it” nonsense, either. While examples can be found on both sides, the quantity of negativity coming from the right far exceeds that coming from the left.

      Don’t these people have jobs? Families? Interests? I am not on social media at all because I don’t have time. Are the people in our society who accomplish something not represented well because they ARE accomplishing something?

      L

      1. Linda I was right with you cheering along in your characterization of social media..up until this:

        I don’t buy the “both sides do it” nonsense, either. While examples can be found on both sides, the quantity of negativity coming from the right far exceeds that coming from the left.

        I’m not so sure about that.

        First, I totally agree that some default to “both sides do it” (or also “the truth is somewhere in the middle”) can often be fallacious.

        But in this case, when I have attempted to check my biases, I’ve come away with a hunch that it is closer to a “both sides do it” problem on social media.

        The first thing is that, since I tend to be left leaning, on twitter lots of my feed will often be liberals criticizing conservatives. However, I’ve also checked out conservative feeds often enough (and also engage in conversation on some largely Republican/Trump leaning forums).

        I was listening to a podcast discussion about social media and – I’m forgetting the author’s name who monitors this stuff – but he pointed out that the idea something like Twitter is some public square were people come to hash out different ideas is just wrong at this point. It much more mirrors a sort of Colosseum, of gladiatorial combat, where representatives of both side do battle, trying to point out the immorality and hypocrisy of the other. So you get huge numbers of followers for a lefty twitter account that pours witty scorn on conservatives, and the opposite for conservative twitter accounts. That really does seem to be more the character of at least twitter at this point.

        And I notice when I’m reading all the critical tweets from the left just how EASILY the commentary goes down – I mean, I so often totally agree, I’m p*ssed off too, so it all slides down like a smooth mixed drink. My biases just grease the way down because I tend to feel the same and agree. But whenever I step back and ask myself “ok, read this left leaning twitter commentary, and the comments, as if they were conservative tweets about the left” then I immediately realize these tweets seem just as mean spirited, just as celebratory of derision, and often depicting the conflict in existential terms, like the Right does.

        Which isn’t surprising. If some very large group of people are exhibiting some negative trait (e.g. the Right) it’s likely they are exhibiting a general human trait we share.

        1. +1

          Part of human nature appears to be “We are righteous and the outsiders are evil” and this is an emotional reaction that fires before reason has a chance to work.

          Perhaps one way of ‘moderating the tone’ of social media would be to impose a 24 hour delay before being able to reply or comment on a twit/post. This would allow a time for the emotions to cool. I can’t see the social media businesses going along with this though as it guts the commercial benefits of stirring up heated responses.

        2. Since I’m not on social media at all, I would defer to your analysis.

          Except, I do live in the world, and I listen to customers’ conversations.

          The venom is mostly coming from one side out here.

          I don’t kill babies. I don’t drink their blood. We don’t have “massive” voter fraud. We are not pedophiles, running “rings” out of our businesses. Trump did not win the election. Fauci is not a criminal. Etc.

          We occasionally get a customer who comes in with a huge chip on his (it’s ALWAYS a guy) shoulder. He’s looking for something to feel wronged about. And, it’s ALWAYS a right winger, lots of times a religious person.

          If you’re going to be a fountain of anger, at least start with actual facts about which to be angry. Sheesh.

          L

    2. I would add the obvious, that government restrictions do not belong on social media sites but that private social media sites are free to establish rules of behavior without falling under requirements of 1st Amendment. Social media sites, if they are not owned by government, are not public squares. They are private clubs.

      1. Disagree – we really ought to have regulations around private platforms for speech. As speech moved online it moved entirely to private space and some people say ridiculous things like: “just make your own site”.

        This is a ridiculous expectation just to engage in the modern forum for communication. The barriers to avoiding private corporations (everything from site hosting to domain name server, to search engine) are all far too high to expect an individual to overcome them just to engage in speech. Thus regulation is essentially required to ensure that the citizenry has access to tools to express themselves.

        At different levels of the tech stack different levels of regulation are required. At the social media level viewpoint neutrality with content moderation (no harassment, no defamation etc…) is reasonable. This may only apply to large sites with reach beyond a small percentage of the public but once a site grows so large that it is a defacto public platform it should be regulated as such regardless of the fact that it is private. Just because it is a private business doesn’t mean it can’t be regulated, the modern idea that private companies can do what they want is not based on history or on good common sense. We don’t let private companies dump solution in the rivers, why should we let them regulate speech on their platforms once those platforms become a tool that is used by large swaths of the public to express their opinions?

        1. Who do you want (government officials) to do this regulation? Because it will likely be some MAGA-enthused operatives.

          When the river water is polluted everyone loses access to drinking water. When an idiot like Musk ruins his social media site people just stop using it and move to Mastodon, Post.news, or elsewhere. Very different.

    3. David French agrees, quite literally: “If there is one thing we know from decades of experience with the internet is that completely unmoderated spaces can and do become open sewers that are often unsafe for children and deeply unpleasant for adults.”
      And it’s true. Pieter Hintjens wrote in “The Psychopath Code” that any community that doesn’t have a procedure for getting rid of bad actors (sociopaths, trolls, fanatics…) gets taken over and destroyed by them sooner rather than later. So yes, moderation is necessary, and I think the guidelines in the article are a good start. The tricky point, though, is “harrassment”. That’s a sufficiently nebulous term that skilled manipulators can harrass and bully others without crossing obvious lines, while accusing their victims of harrassment when they defend themselves. It takes skilled moderators with time on their hands and a good knowledge of the community to figure out who’s who, and that doesn’t work in communities that encompass potentially everyone, like on Twitter.

    1. Almost every advert (a.k.a. “promoted Tweet”) that I see on Twitter results in the business that paid for it being blocked. If their product was of any value, I would have seen other people talking about it naturally. Therefore, being advertised equates to being worthless. (There are exceptions – several times a year I don’t block an advertised Twitter account. Maybe less often. I should review the blocked account list some time this year – maybe that’ll be a New Year’s hangover task.)
      This may make it difficult for Musk to sell advertising to me via Twitter. [SHRUG] Not my problem. His problem. Also his problem to not alienate advertising customers by hosting toxic content. [ANOTHER SHRUG]
      I’ve yet to see any advertising on Mastodon (that said, I do have ad-blockers and NoScript deployed as routine “door security”). I have been unable to re-connect with one regular Twitter correspondent, who has taken a back-up position on a service called (IIRC) “post.com” who seem to have a business model of re-selling “interesting articles” (i.e. other people’s content) as PDFs for their subscribers. OK, that’s a business model, but I wonder if it’s going to scale. They sort-of imply they’ll implement cross-social media links (e.g. the FediVerse emerging standard of @username@server.domain.TLD) at some point, but I suspect they’ll run into lawsuits from existing content providers objecting to “their” content being monetised by a third party. We’ll see. But I’m not going to spend $€whatever/mo to find out.

      1. I’m on both Mastodon (@GBJames@c.im) and Post.news (@gbjames). Mastodon is a collection of crowd-sourced servers and doesn’t have any paid advertising as far as I know. I have seen a couple of people hawking this or that on their own behalf though. Post.com is still in beta and seems to intend to be funded by people buying credits that can be used to read articles that are posted by Reuters (as an example) and other journalist folk.

        These two sites have a very different feel compared to Twitter, especially now during the Muskian conflagration. How they play out over the long term remains to be seen.

  5. I absolutely agree that owners of social media platforms should follow First Amendment principles. American ones, not our compromised Canadian ones.

    But what if such a business model can’t make money because advertisers are repelled by the content and worry that their brand would be contaminated by their association with content that they fear their customers will find so objectionable they switch allegiance to competitors? Or even a tiny noisy minority who aren’t even customers but can organize boycotts using that very platform? This is an old problem facing newspaper publishers who, in the old days, sustained their readership by reporting straight news and had to deal with blowback from advertisers only when their editors rook unpopular stands on specific issues. Now the only thing that social media traffics in is opinions. The advertisers have to decide whether they want to be associated with that at all, ever. Most advertisers aren’t interested in free speech beyond getting their paid message out. They always have to worry about whether the money they spend on advertising is doing them more harm than good and they can’t be compelled to buy advertising anywhere.

    So it’s easy for us to say social media companies should new to free speech. It’s not our money. And the government can’t force someone to invest in a money-losing business. If it wants to buy Twitter and run it like NPR or Voice of America with advertisers only as donors, fine.

    1. You’ve put your finger on it, Leslie. Twitter’s level of restriction of speech boils down to a practical business decision, not a decision based on a political or social ideal.

  6. The idea of “hate speech” is inherently “problematic”, being illegitimate, entirely unconstitutional, and utterly arbitrary (who will decide which person or group being “harmed” by words should be privileged in the assigning of degrees of “harmfulness” to discourse?). Human nature being what it is, there will always be speech which is “hateful”, but the concept of “hate speech” deserves to be relegated to the proverbial dust-bin of history.

    1. Hate speech is speech that promotes violence against an individual or group. Should that be regulated to the “proverbial dust-bin of history”.

      1. Your definition of “hate speech” is not generally accepted; there is no generally accepted definition of it. Advocacy of violence against people is generally accepted as being beyond what should be allowed on social media, including by free-speech advocates.

        1. Advocacy of violence against people is generally accepted

          … as being covered by “incitement to assault” criminal laws – at least in the jurisdiction I live in. That’s been illegal since … I’m not sure, probably before the 1707 Acts of Union.

  7. Private companies are under no obligation to legal practice free speech. They may choose to censor any posts they want and the government should not be allowed to stop that. The only limits a government should intervene if a post or article is promoting hatred or violence against a group or individual.

      1. Yes, but posters here were suggesting the opposite, that governments need to regulate social media. Unless it is against the law, social media can be as censoring as it wants to be.

        1. I’m amazed at the number of conversations that go: “we want a new law requiring social media to be politically neutral”. “But since political bias is not currently against the law, that would require a new law.” Yes, that’s what we want, a new law”. “But that would require a new law!”

        2. As I just said to @Coel@WEIT, we already have laws about incitement to assault to cover that. Are those “felony” or “misdemeanour” offences in your jurisdiction(s)?

  8. I know this glosses over many finer points (of this and many other comment threads) and paints this topic with too broad ‘a brush, yet here it goes: Several years ago I caught myself telling my kids,”Consider your source. ” so often I started to “sing” a tune that resembles(?) “Consider Yourself” from “Oliver”. Perhaps Weird Al or a similarly nuanced performer could put a comprehensive version of that theme together (much as my kids preferred).👴

  9. Count me in the group with Linda Calhoun and others here who reject social media entirely. I experienced revulsion for the concept of social media first when MySpace was the big thing, and I witnessed the problems caused by it among young people especially. Facebook and Twitter only served to increase my revulsion. I believe human society would be a better place without social media. I think our descendants will look back at this time and wonder how we all could have been so swindled by this debilitating counterfeit of real, meaningful social interaction.

    1. I agree social media can be awful. But I don’t think one has to give up IRL friendships etc. in order to be on twitter.

      I’m a liberal but follow a lot of gender-critical and conservative twitter accounts because I sometimes stumble on things like this

      https://quillette.com/blog/2022/12/09/ignoring-biological-reality-puts-female-hockey-players-at-risk/

      that I might have otherwise missed because it doesn’t fit the narrative at the NYT and the CBC. Admittedly I also have to dodge a lot of “ok groomer” nonsense. But as Thomas Sowell noted, “There are no solutions, there are only tradeoffs.” (Another voice I discovered on twitter.)

      1. The video of the tournament that is the subject of the Jonathan Kay’s Quillette story has been picked up by several news outlets of a conservative persuasion. It isn’t that much of a hit and the injured woman is OK. For a nice example of New-speak, you have to read this article in the Washington Examiner (of all places):

        https://www.msn.com/en-us/sports/nhl/male-to-female-transgender-hockey-player-concusses-rival-at-team-trans-event/ar-AA15dJYg?ocid=winp2fptaskbarhover&cvid=bea709e9542f41b48757961d5ea3147d

        Their story makes no sense unless you read Jonathan Kay’s Quillette story first to find out what really happened at this obviously staged and choreographed farce. It was like professional wrestling. The depths to which Canada’s game has sunk. (‘course it’s not ours anymore, is it?) But the Examiner’s oh-so-correct references to big, fast, strapping female players dominating skinny little male players who break down and cry is kind of funny. “Team Black was composed of only two transgender women [the rest being transmen], giving them a clear disadvantage in size over the almost entirely female transgendered team, Team Pink, which won.” I think the Examiner had its tongue firmly in cheek when it wrote up the story, especially knowing that the transwomen on Team Pink had all played varsity hockey as men at university.

        1. I was thinking of the quality of the journalism more than the quality of the hockey but both were poor. If pink 90 was one of the former college players it must have been decades ago: at half speed he still couldn’t make a slight turn to avoid hitting black 91 from behind. Neither story notes that should have been a penalty. Ha yes “female” in the Examiner, made me sprain an eyeball.

    2. I use social media, but I think I’m pretty close to you in spirit. The early personal web was fulfilling and meaningful, and users traded that for the convenience and duplicitousness of social media.

      I feel like social media’s “rightful” place is in the ranks of a purpose-built tool that serves the users, selectively leveraged. (Search engines feel a little more like they’ve settled into that role.) And I think there’s such a thing as a “good” form of social media: good design, good principles, good execution, et cetera – but I don’t think that’s been achieved.

      These days I try to do what I can to re-promote the personal web and the coolness of our ability to design and build it ourselves by leading with interest or enthusiasm, which within humanity has atrophied after developing only a little.

      One of my favourite activities lately has been to browse these comments for participants who enter their sites, and then visit or bookmark those sites. (Do you do ever enter yours when commenting?)

      1. Thanks, Steve. I would to see a transformation of social media such as you envision.
        I’m not sure I understand your final paragraph or question. Could you elaborate a little more? I’d like to answer your question.

        1. If you provide “website” along with your e-mail and name when commenting here, your name is rendered as a link to it. So I’m in the habit of checking whether commenters’ names lead to their sites, and sometimes bookmark and visit them. I was just asking offhand whether you had your own personal site and ever shared it.

              1. Thanks for the compliment! I think you have to be using the WP Reader for the name to be a hot link.

  10. Everyone is a freedom of speech absolutist until someone’s speech hits them in their own little walled off garden of sensitivity.

    1. I don’t think no sane person is a freedom of speech absolutist. The obvious slander and libel concerns, plus inciting panic or violence.

  11. There are many places on the internet with way less moderation than Twitter. Off the top of my head: 4Chan, Parler, and Truth social (allegedly). One of the reasons Twitter has more users than those other options is because they moderate. The reason that most people who are reading this post don’t use those other sites is because they have less moderation (the cesspool others describe).

    It kind of reminds me of the Libertarian Utopia, a place that all Libertarians dream of but would turn out so horrible that none of them would actually want to live there. Free speech on Twitter sounds good at a one atom deep glance, but it would just be a troll circus if that actually happened.

  12. I mostly avoid social media, but my limited understanding of the current debate about twitter is not really about hate speech as we might use the term here. It appears to be about losing censorship control of a major means of popular communication and a source of news.
    Certainly, the banning of the NY Post in 2020 was primarily about stopping the spread of information that could be harmful to democratic aspirations.
    The previous state of Twitter was that although conservative viewpoints were frequently banned, explicit calls for violence from left wing sources were left unhindered, along with the rantings of various homicidal third world despots.
    Twitter has, in recent days, banned something like 100K accounts used for child trafficking and child pornography. That he needed to remove such accounts means that the previous rules were not really focused on that sort of thing.

    Dr. Coyne, however, is arguing in good faith about ways to control content that is actually dangerous. But you cannot allow those serious decisions about moderation to be made by people who claim to feel unsafe when they hear an opinion slightly different from theirs, or who believe that not using someone’s made up gender terms amounts to genocide or erasing them as a person.

  13. I can’t shake my suspicion that censors are persons who believe they should be able to read things that they believe YOU are unfit to read. I find distasteful the thought that there are people who think they know better than I what’s suitable for my reading.
    Oddly, when looking at electronic or print media, I find that I seem able to evade most things that I don’t wish to read, simply by not reading that which I don’t wish to read! No one else has to do it for me; the informational world seems set up to permit us to adjust our feeds to our own tastes.

  14. Defamation isn’t protected speech. Neither is obscenity. Harassment is unlawful.

    The First Amendment standards for these categories of speech is extremely high. And I don’t see how you can have moderation of any of them consistent with the First Amendment prohibition on prior restraints.

    With regard to defamation, for example, although there are a few state jurisdictions (though not the federal government) that have misdemeanor criminal libel statutes on their books, these statutes are almost never prosecuted and are of dubious constitutionality. Defamation is unprotected speech primarily in the sense that a person who’s been libeled or slandered can bring a civil suit after the fact to recover monetary damages — and the standard for doing so for a “public figure” is exceptionally demanding.

    As for obscenity, prosecutions for it are rare in the extreme, save for kiddie porn. And US jurisdictions ban kiddie porn not because of any adverse effect its content has on viewers, but because its generation involves the actual sexual abuse of minors. After all, consistent with the First Amendment, we do not ban the depiction of sexual activity involving minors in literature or in animation or even in live-action videos where the performers are over the age of 18 but look (and are portrayed as being) younger.

    In any event, Elon Musk (who seems by nature an internet troll himself) is off to a clownish start. For example, on the same day Twitter suspended the account of Kanye West (whose anti-Semitic rants are plainly repugnant, but are just as plainly protected by the First Amendment), Twitter reactivated the account of Andrew Anglin, publisher of the neo-Nazi, Holocaust-denying site The Daily Stormer. Musk also appears not to be above bringing the banhammer down out of personal vindictiveness. Twitter, for example, immediately closed the account that posted a video of Musk getting booed when invited onstage at a Dave Chappell show. (It’ll also shock the shit outta me if Musk covers the billion dollar nut due this spring on his $44 billion Twitter debt.)

    Like others here, I have grave doubts whether a First Amendment standard can provide a feasible business model for a private social media platform that relies in any significant measure on advertising revenue. I mean, as a free-speech freak, I say bless the heart of anyone who can figure out how to do it. But I’ll believe it when I see it.

    1. Many thanks for this. I always look forward to your clear and concise comments. I think Musk is not just clownish, I think he’s dangerous in that he is trolling of not only liberals but the alt-right. He was clearly surprised at the reaction of what he thought would be a friendly audience and he’s fabricating stories to explain it. The hate and violence of the alt-right is extremely dangerous and he needs to watch out because they’ll turn on him in a heartbeat if they figure out he’s trolling them, too.

    2. I agree with your observations. I think that Jerry is deluded when he says, “just let ‘er rip according to how the courts have construed the First Amendment. That is, I think, what Elon Musk wanted,” It is possible that even Musk himself believes this, but it’s nonsense.
      As a huge fan of Musk’s prowess as a manager of technological enterprises, I’m embarrassed at how little he knows or understands the business Twitter is engaged in and by how shallow and self-serving his thinking about free speech is.

  15. That’s all fine, and I generally agree.
    But what about disinformation? Conveying content that is demonstrably false is not a “viewpoint.” I have not heard this discussed cogently in the context of free speech. Maybe that’s because it’s generally agreed that censoring such content is not an impingement of free speech, and therefor irrelevant to these discussions? If so, great, but it then leaves the question about how to deal with disinformation on social media. This is a widely discussed problem and not easily solved.

    1. Only falsehoods that are of political interest are suppressed.

      Claiming that vaccines are harmful (despite Covid-19) or advocating a nuclear strike will not suffice to get you banned from social media. You can also deny the theory of evolution.

      Curiously, that does not bother anyone. I cannot recall any attempts to estimate the “harmfulness” of various beliefs. Instead, the intolerable opinions always seem to be those that run afoul of predominant political views.

    2. As soon as true/false becomes the criteria for banning or persecution, you will inevitably have the worst sort of people lining up to be the arbiters.

      I know this will be an unpopular example, but it stuck in my mind. Early on in the pandemic I was watching a news report, and the newsreader stated that “President Trump today made the false claim that a vaccine for Covid-19 should be ready for manufacture by the end of the year”.
      The wording of it was really interesting. The implication was that the reporter who researched the story had found unambiguous evidence to the contrary, enough to state with absolute certainty that Trump’s statement was false.
      But he was actually correct, having no doubt received the information from experts.
      I come not to praise Trump…., but it does illustrate that not everyone defines truth and falsehood in the same way.
      Or worse, they just do not care.

      1. Factchecking websites prove your point. Too often, they are unable to resist adding so much context that their assessment is effectively an op-ed. And sometimes, they are zealously partisan (there was no need to fact-check the Babylon Bee).

  16. Bari Weiss’ Twitter Files reports are pretty alarming when it comes to how the behind-the-scenes moderation at Twitter has been operating. (E.g., Part 2, here: https://archive.ph/DDVEQ)

    Musk would do well to think before he opines, but his attempt to clear out the Augean stables seems to be a genuinely decent effort.

    1. Thank you for the links–they’re very informative. I’m a big admirer of Ken White and always appreciate his objective take on emotional situations. His words always make me take a step back and think differently about things.

  17. I don’t think people mind a reasonable moderation policy. I think where Twitter went astray is when they started banning people for posting “misinformation.”

    For example, remember when social media did not allow people to discuss the “lab leak” theory? Even if the lab leak theory is not true, I fail to see why people should not be free to discuss it.

    In any case, we are surrounded by misinformation. We are bombarded by ads, flooded with spam, and sent phishing emails every day. We are used to misinformation and take it in stride.

    1. I wonder if it would make sense if, instead of outright suppressing supposed misinformation, platforms would add a tag to questionable posts saying “The information in this post is probably incorrect”, and instead of banning users, add tags like “troublemaker”, “political extremist”, “shitposter”, “conspiracy peddler” etc to their profile. Then offer filters for users who don’t want to see posts like that.

  18. Congress should direct the Federal Communication Commission to revoke the license of any broadcasting company that has been found to have “knowingly broadcasts false or misleading information.” Propaganda is corrupting and corrosive to democracy.

  19. First, as others have said: this was not a column on the question of whether social media moderation should be regulated by government, but it’s worth noting since it’s a stance often taken.

    Importantly, French leaves fairly ambiguous “should” means. Social media platforms “should” model moderation after the first amendment… because it will provide a better experience for the users? Because it will maximize its popularity? Because it will provide the healthiest environment for general discussion worldwide? Because it will calm the contention around this issue? Because it will result in more revenue for its owners? Because history suggests it’s morally superior?

    The article does have some clear value: an expert in implementing solutions to the logistical challenges of respecting free speech at public universities shares concepts and methods which might solve problems present when doing so on the Internet. Within a nest of inept moderators who rule according to their sensibilities or impulses (as Twitter has been accused of doing), such abstraction might yield more consistent rulings and raise the platform’s confidence to state their policy transparently.

    But after reading this article and watching the discussion from within Twitter for two years, I don’t think a flat “yes” is the answer to any of those “should” questions. I’ve still never understood this idea that individual sites or services should not have their own policies regarding published content.

    A point of reference: Apple’s curated app stores for their portable devices and Macs. On the iPhone and iPad, they remain the only supported way to install any native apps. Within its category, it’s one of the world’s most popular and used platforms, if not the most. But the rules about app content are specific and restrictive, and include no defamation, no criticism of religion, and no pornographic content, et cetera. From every perspective I listed earlier, Apple thinks “no” the answer to every version of “should.” They introduced the stores in 2008, and they’ve immensely grown the company, the user base, their revenue, and their repuation on consistently answering “no” to that entire list of “shoulds.” (Some people don’t like this, of course. If you think Apple “should,” then “because it would satisfy that minority” is the stongest “should” you’ve got – not a very strong one.)

    Another point of reference: other platforms (Gab, Parler, and others) have made it their brand to model their policies after the first amendment, particularly when launching. French’s article makes the proposal, but the results of the experiment are available, and I wouldn’t say Gab, Parler, or anything else has proven relatively successful, attractive, noteworthy, or exciting. (Though such launches do seem exciting to a category of people I generally find less desirable or fruitful to interact with on Twitter.)

    A third: Jerry’s site here is what it is because it’s moderated according to Jerry’s rules. They’re restrictive and unique. “Should” Jerry allow personal insults, thread domination, or free rein to “I get email” senders, now or ever? If the site gained enough users to be comparable to a “public square,” would or should that change your answer? (My answer: no, period.)

    I think it’s fine that Twitter is the way it is, and I think it’s fine that such figures can migrate to Gab or Parler, because…

    *There’s already an online space that allows for uncompromised free speech, and that’s the Internet itself,* particularly the Web.

    The Internet is even less restrictive than America – the available space and capacity for transmitted speech are practically infinite. Twitter, Facebook, and all the rest, as well as every community or personal site, are constructed, managed, and distinct spaces within that open space. Just as anyone can acquire basic literacy to read, write, listen and speak offline, anyone can acquire basic literacy to form their own space online. The Internet and the Web *are* successful, attractive and exciting for those reasons. There are already essentially “free speech” policies at that level.

    So, the level of the entire Internet is the level on which free speech should be strongly advocated for and protected. (Let’s transcend “should” and make that a “must.”) The Internet a treasure of the magnitude that free speech is, and when it’s threatened, that’s when all the world’s people should be united in opposing the threat.

    But we don’t need more of this confusion between the open Internet and the deliberately constructed, managed, private platforms within it. So, to conclude “weighing in,” I don’t consider this issue the main problem.

    If there is a main problem, it’s that awareness of that basic Internet literacy is low. Some on Twitter seem to feel entitled to complain about account suspension on the grounds that their only online soapbox could be unfairly taken, and it’s a false premise. They agreed when they arrived that they were simply using one of Twitter’s ready-made soapboxes. The wood, nails and hammer for their own soapbox were ready and waiting long before that. If they feel free speech is lacking online, then perhaps they should finally use them.

    1. Exactly. Luckily, David French leaves us a way out of all his “should”s:

      As a private company, you can choose to become, say, a “progressive social media platform” or a “website for Christian connection and expression” and govern yourself accordingly.

      So, as a private company, you can declare your platform a more-moderated haven for kinder gentler discussions than the internet-at-large.

    2. By arguing that people should have to know how to build and maintain website to have expression online is to argue that you are perfectly happy to exclude vast swaths of people who can use a free, user friendly, app like twitter but would never go through all the work to build a website. It is essentially arguing that, well if you want to speak on the internet you have to either be technically competent enough to do so or agree to the arbitrary rules and restrictions of the various platforms which are available for you to do so.

      I fall on the side of arguing for heavy moderation but that moderation should be as viewpoint neutral as practicable. What this means is likely for those with more experience to work out. I don’t believe that twitter (which has become one of very few defacto town squares, Facebook and YouTube being the other popular ones) should regulate content based on political viewpoint. When private companies develop products whose scope expands to become the primary online platforms for disseminate political opinions and commentary those platforms should fall under government regulation. Company size matters, and different regulations should apply at different scales and to companies that operate with different purposes. Twitter doesn’t claim that it is the progressive social platform, or the conservative social platform, it claims it is for everyone so it should be regulated as such.

      Of course preventing pile ons and harassment is necessary, and yes those are hard problems to solve. I don’t think we want

      As an aside, the App Store is no longer going to be the sole pathway for apps on iOS in Europe precisely because Apple’s control has been deemed stifling.

      1. Benjamin,

        The amount of tech literacy needed to build a web site is not high; it’s learnable in grade school like reading and writing are, and should be an educational standard. It shouldn’t and needn’t exclude anyone. (Granted that even web hosts have content policies, though, happily, finding web hosts that defend their customers’ freedom of speech is not a problem. If it were a problem, I would support government-supported hosts required to protect it.)

        What does require a higher level of literacy is independent navigation of a viewpoint-neutral platform, so I’d say that between the two of us, I’m more for inclusivity and you’re more for exclusion based on competence requirements, if those are the metrics you wish to use.

        When you support viewpoint neutrality, are you saying, for example, that the opinion on a factual issue of a widely-respected scientific journal should be handled equally to the opinion of an influential figure like an Alex Jones? If you’re for greater accountability for popular platforms, why don’t you think the opposite?

        I’d say Europe’s regulations on the App Store have yet to fully play out, but I’d predict the aftermath will only support my point that the App Store’s identity flows from its policy.

  20. If we allow the rabble to have printing presses, there will be no end to the vile falsehoods that they propagate. Nothing will be safe. Not the Church. Not the King. Nothing.

    1. Wrong analogy, Doug. The question is whether every publisher be required to publish everything someone wants them to publish?

      1. This is also the wrong analogy. They aren’t a publisher, they are a platform, an important distinction. It is as though the mail system was content moderated. A publisher reviews everything they receive before publication, twitter does not do this. Twitter merely facilitates the transmission of the information.

        1. Again, bad comparison. The mail system is a government service. Private companies can decide what kind of packages they want to ship. They can refuse, if they wanted, to not allow toys in packages they handle, or specialize in only shipping toys. Social media services are private entities and terms of service are both legal and desirable.

  21. The thing is the free speech amendmant is US, but social media are universal. American media companies must remember they are subject to other laws in other countries.

    1. American media companies must remember they are subject to other laws in other countries.

      I’ve spent decades dealing with American companies who are outraged that when they operate in other countries, they have to obey those other countries laws. I’m unsurprised to see that the phenomenon extends beyond the oil industry.

  22. I’ve argued for a while that, insofar as possible, sites like Twitter and Facebook should hew as closely to the First Amendment as does any government organization, including public schools.

    It can’t happen. Social media sites are dependent on advertising for their revenue. Advertisers, as a rule, don’t like their ads associated with certain types of speech and therefore the social medium will suppress such speech to maximise their revenues. This is what Twitter did before Musk bought it and it is what Twitter will be doing again in the future if Musk wants his advertisers back.

    This is nothing new by the way, traditional media has always been mindful of who its advertisers are and what they want to see published in the media channels they pay for.

    just let ‘er rip according to how the courts have construed the First Amendment. That is, I think, what Elon Musk wanted, but the entire Internet now seems bogged down on endless discussions of how to “moderate” Twitter, combined with endless nonstop demonization of Musk (I have no dog in the pro- or anti-Musk arguments).

    Actions speak louder than words. Elon Musk is censoring speech on Twitter. He may have allowed a few of the right wing nut jobs back on, but speech that is critical of Musk himself seems to be coming under the ban hammer. For example, accounts that posted the video of him getting booed at the Dave Chapelle gig have been banned.

    By the way, to all the people above who say they don’t interact with social media: the comments section of this web site is social media. It’s a particularly pleasant, entertaining and educational social medium (at least, I think so) but it is this way partly because speech is strongly moderated by its owner. If Jerry decided to operate it by 1st amendment principles instead of by Da Roolz, it would probably degenerate fairly quickly.

    1. If Jerry decided to operate it by 1st amendment principles instead of by Da Roolz, it would probably degenerate fairly quickly.

      Disagree. First Amendment principles do not mean abandoning the marketplace of ideas to trolls. It means allowing people to discuss topics like the lab leak hypothesis, the wisdom of lockdowns, and the safety of vaccines. Da Roolz are perfectly consistent with First Amendment principles.

      1. “Da Roolz are perfectly consistent with First Amendment principles.”

        Say what?

        Do you think the government could, consistent with the Free Speech Clause, impose Da Roolz — in particular Roolz 4, 5, 6, 7, 8, 9, 21, and 22 — in a public forum? Do you think the government could, for example, consistent with the First Amendment, require religious believers to give reasons supporting their religious beliefs in order to gain access to the public square?

        It clearly was not Jerry’s intent in creating this website to establish a First Amendment free-speech zone, and he plainly has not done so. I’m certain that Jerry understands this at least as well as, and most likely better than, anyone else.

        1. Are you really saying that Jerry does not agree with the University of Chicago principles of free expression? He has supported these principles many times.

          From its very founding, the University of Chicago has dedicated itself to the preservation and celebration of the freedom of expression as an essential element of the University’s culture. In 1902, in his address marking the University’s decennial, President William Rainey Harper declared that “the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago” and that “this principle can neither now nor at any future time be called in question.”

          https://provost.uchicago.edu/sites/default/files/documents/reports/FOECommitteeReport.pdf

          1. True, but this website is not the public square. It is not even the University of Chicago. It is his living-room.

          2. Jerry is a staunch defender of First Amendment free-speech principles in public fora (and in fora that have expressly pledged to abide by First Amendment free-speech principles). But your assertion was that the rules of this website are consistent with those First Amendment free-speech principles when they plainly are not.

            Your argument in reply is a classic example of the fallacious motte-and-bailey maneuver.

            1. a classic example of the fallacious motte-and-bailey maneuver

              That sounds like something that should have been in “Monty Python and the Holy Grail”.

      2. Lysander – like Ken, I think Jerry believes in protected free speech in America and in public universities, but it’s obvious “Da Roolz” are a different matter. (I’d just finished using them to contrast with free speech-inspired policy in my longer comment above.)

        The first amendment essentially protects speech from penalization, but the rules here specifically outline categories of speech which are penalizable.

      3. But, if First Amendment principles were applied, people who transgressed the civility rules would be allowed to post. People proselytising for religions would be allowed to post. Creationists would be spamming the place. Right wingers would be pushing their conspiracy theories. etc etc.

        1. PCC(E) lets some comments through as a sort of example, and even dedicates entire pieces to the shortest – but most interesting – of such comments.

          This satisfies and exceeds – quite concisely – the quotidian notion that garbage comments are valuable in that they are “raising awareness” of competing ideas, etc. And it has everything to do with, effectively, the “editor” of the website.

  23. The problem with “moderating” social media is that the components of “society” are quite diverse. There might not be actual dogs typing away in their mother’s cellars, posting bitchy comments on the internet, but my literal Stalinist mother-in-law might be tempted to post with her opinions (if she wanted to).

    [Speech codes] They wanted to make sure that students and faculty were protected from psychological discomfort. The speech code was born.

    A Sisyphean task, if ever there was one. Education in general requires introducing the student to new ideas (new-to-them and/or new-to-the-universe). At best, that is not guaranteed to be free from psychological discomfort ; more generally, the effort of discarding some pre-existing notion and replacing it with a new or different notion is practically guaranteed to be psychologically uncomfortable. People like to think of themselves as rational beings, so having to consider adopting something new (to-you, or to-the-universe) is almost always going to be uncomfortable.
    One of the more cynical truisms of science is that “progress is made, one funeral at a time”. It’s survived as a truism for well over a century because it’s got a real element of truth inside it.
    In an ideal world, those aims for campus life should probably be restricted to areas of personal and social life, but specifically excluded from intellectual life, where a degree of discomfort should be expected, if not guaranteed. Otherwise, what would be the point of expending the effort of attending education? But there would have to be a lot of funerals of DEI professionals before that happens.

  24. Social media algorithms are designed to maximize clicks. Since controversy sells it’s the perfect system for the amplification of lies and misinformation. Click on a link that purports to provide information on vaccine safety and you’re served up a steady stream of ever more deranged anti-vax nonsense. Click on a pro-Trump story and you’re led down the path of Qanon, white supremacist and election denialism. This has real world outcomes … democracy is under threat and thousands of lives have been lost unnecessarily.

    The solution is to either moderate lies and disinformation or regulate the algorithms. To do neither is folly.

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