Early December might have marked the first time anyone ever asserted a First Amendment right to see the president’s son’s penis, an argument that the Framers likely did not anticipate.
In November, the billionaire Elon Musk purchased Twitter, proclaiming himself a “free speech absolutist,” in defiance of a rather extensive record of retaliating against speech he opposes. A month later, Musk, citing five tweets that had been deleted at the Biden campaign’s request in October 2020, asked, “If this isn’t a violation of the Constitution’s First Amendment, what is?”
The tweets in question included explicit pictures and video of President Joe Biden’s son, Hunter—unambiguous violations of the platform’s standards. Nevertheless, the Fox News pundit Tucker Carlson called their deletion a “systemic violation of the First Amendment, the largest example of that in modern history.”
[David French: Elon Musk and Tucker Carlson don’t understand the First Amendment]
There are some problems with this assertion. One is that Twitter is not the government and so is not bound by the First Amendment. Another is that the Biden campaign was not the government and was also not bound by the First Amendment. Still another is that there is no constitutional obligation for private actors to host images of a candidate’s son’s penis, and indeed, rather than a violation of the First Amendment, the choice not to host such images is itself an exercise of free speech.
The catalyst for these novel interpretations of the First Amendment was a Twitter thread by the journalist Matt Taibbi, which included the recently purchased platform’s internal deliberations over whether the Hunter Biden story violated the company’s policy on hosting hacked materials. Taibbi wrote in his newsletter that he was granted access to the files under unspecified “conditions.” The New York Times said it had requested access to the same files, but did not get a response.
Curiously, as the writer Osita Nwanevu notes, among Taibbi’s observations was that requests by the Trump White House for deletions were also “honored.” The Trump White House, of course, actually was the government.
Now, those requests for deletions were not necessarily nefarious. Sources attempt to persuade media outlets not to publish things fairly frequently. Sometimes, those sources are in the government. Unless coercion or threats of retaliation are involved, there’s no violation of the First Amendment. Of course, the Trump White House did openly threaten to punish tech companies over their editorial decisions, to broad support from people who think the Constitution bars Twitter from deleting Hunter Biden’s dick pics.
Reconciling that apparent contradiction requires understanding how freedom of speech has been redefined to confer a right to say only what conservatives want you to say. In this particular case, conservatives are outraged that social-media companies limited the reach of a New York Post story published in 2020, which alleged corruption in Hunter Biden’s commercial deals with foreign firms that implicated then-candidate Joe Biden. Fearing that the revelations were part of a foreign disinformation campaign, some social-media platforms restricted traffic to the story, or in Twitter’s case, banned sharing of the link altogether, something then-CEO Jack Dorsey later acknowledged was a mistake.
Those decisions didn’t stop other media outlets from discussing or investigating the allegations. It did not even prevent people from tweeting their opposition to the decision, which was not confined to conservatives. Observers from across the political spectrum raised concerns about both the decision and what it said about the power and influence of tech platforms. As my colleague David French writes, rather than suppress the story, the actions of social-media platforms “launched a national debate that’s still not over.”
But that wasn’t enough. Conservatives wanted the Hunter Biden story to derail the Biden campaign and pave the way for a Trump victory. They have now convinced themselves that it was somehow a constitutional violation for private companies not to take the bait, and that the state should force them to do so in the future.
The insistence that social-media companies should not be allowed to make editorial decisions about what is welcome on their platforms, that it violated the Constitution for a publisher to reject a story it saw as unreliable, that a private company is obligated to let you use its platform to hurl racist slurs at strangers from behind the safety of a screen—this understanding reflects belief in a new constitutional right. Most important, this new right supersedes the free-speech rights of everyone else: the conservative right to post.
Pat Tornillo wanted to debate. In 1972, after the Miami Herald editorial page called the union leader and congressional candidate “Czar Tornillo” and endorsed his opponent, Tornillo invoked a 1913 state law that created a “right of reply” for politicians, and asked the newspaper to give him space to respond.
The Herald refused. Tornillo sued all the way to the Supreme Court, which unanimously struck down the law on the grounds that any law compelling an outlet “to publish that which reason ‘tells them should not be published’ is unconstitutional.” Acknowledging fears that media concentration had placed “in a few hands the power to inform the American people and shape public opinion,” and so produced “a homogeneity of editorial opinion, commentary, and interpretive analysis,” the justices nonetheless concluded that the First Amendment barred the state from deciding what a newspaper can publish.
Deciding what or what not to publish, the justices concluded, was an essential component of free speech.
“The choice of material to go into a new paper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment,” the justices wrote in 1974. “It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”
Tornillo, in other words, did not have a right to post on someone else’s platform, even if the platform was powerful and influential, or even if it was politically biased.
“The First Amendment has always been intended to stop government regulation, not private regulation,” Mukund Rathi, an attorney for the Electronic Frontier Foundation, told me. “It’s true that many users are often frustrated by the way that private publishers, including social-media platforms, regulate speech. They’re often frustrated when platforms take down their content, or deprioritize, or demonetize their content. But these are all things that platforms have the right to do. And this is something that the Supreme Court has recognized going back centuries.”
But that was before social media, and before a right-wing federal judge butchered the First Amendment and assembled a conservative right to post out of its corpse.
[Genevieve Lakier: The great free-speech reversal]
For the past few decades, conservatives argued that virtually any restrictions on corporate speech violated the First Amendment. Most infamously, the Supreme Court ruled in the 2010 Citizens United case that restrictions on corporate electioneering were unconstitutional because, as Justice Anthony Kennedy wrote, “the civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” Justice Antonin Scalia went further, arguing that “to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.”
Conservatives have previously classified interfering with editorial control as a form of “muzzling,” even when businesses are trying to avoid regulation that has little to do with expression. After Donald Trump took office in 2017, his administration repealed Obama-era net-neutrality regulations on the grounds that telecom companies had a free-speech right to decide what information gets transmitted over the internet, as an exercise of editorial discretion—a much broader power over what people can see on the web than social-media companies have. Texas Governor Greg Abbott has personally intervened in court on behalf of fossil-fuel companies whose First Amendment rights, he has argued, would be violated if the companies were forced to make public their own internal arguments about the reality of climate change.
The consistency here lies in the belief that corporations and people have freedom of speech as long as they exercise that right on behalf of right-wing causes. And that is where social media and the conservative right to post come in.
This fall, Judge Andrew Oldham, a Trump appointee on the Fifth Circuit, ruled on a challenge to a law in Texas that bars social-media companies from moderating or deleting users’ posts. A district court had originally overturned the law, but the conservative Fifth Circuit intervened and upheld it without explanation, until Oldham’s opinion.
Regurgitating popular right-wing legal copypasta on social media, Oldham’s opinion compared social-media platforms to “common carriers” such as phone lines and railroads—which, coupled with the current conservative position on net neutrality, is a little like arguing that cable television is not a common carrier but individual channels are. Oldham determined that the law was constitutional because “we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.” The court, in other words, embraced the idea that the state of Texas has a right to determine what people say. The First Amendment bars state censorship. It does not prevent private outlets from deciding what ideas are worth publishing.
Oldham’s ruling was, to put it mildly, a departure from not just the right’s prior arguments regarding corporations and free speech but a century of legal precedent. “Just as I decide what to write and what not to write, bookstores decide what books to carry and what not to carry, newspapers decide what articles to publish and what ads they accept. It’s a fundamental aspect of content creation and its publication,” Jennifer Granick, an attorney for the ACLU, told me. “There’s always some kind of selection or curation that takes place. And it is irrelevant that the speech is [the] speech of other people. Newspapers have letters to the editor, but the newspaper doesn’t have to publish every single letter.”
Texas made no secret at the time of the law’s passage as to its purpose. “Social media websites have become our modern-day public square,” Governor Abbott said in a 2021 press release after signing the bill. “They are a place for healthy public debate where information should be able to flow freely—but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas.” A similar law in Florida was announced by Governor Ron DeSantis as a strike against the “leftist media.”
The First Amendment was never meant to prevent private actors from deciding which ideas are worthy of elevation or abandonment. Its purpose is to ensure that the government does not make that determination for them, even when that choice ends up being wrong. Although this particular act of censorship presents itself as a kind of anti-censorship, its overt aim is to impose state control over what speech and which ideas may be disregarded.
“Both of the laws are, in their central provisions, attempts to override the platforms’ editorial judgment,” Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, told me. “They are attacks that are motivated by the platforms’ past editorial judgments, an effort to punish the platforms for editorial positions that some of them took with respect to President Trump’s account in particular.”
The statute invoked by Tornillo was absurd, but at least it was crafted in an effort to ensure evenhandedness, not to impose state-approved political ideology on private platforms.
“Conflation of the platforms as a single body also implies they use the same exclusion and censorship criteria, which they do not,” John Coates, a deputy dean at Harvard Law School, told me. “If one were to treat all newspapers as a body, then one could easily have said circa 1975 that collectively they occupied the same role as the platforms today, yet in the Miami Herald case the Court rejected the idea that its discrimination based on viewpoint could be made illegal by the state.”
Even if you think that social-media platforms should be politically “neutral,” every platform has a right to decide what that means; a state imposing its own view of “neutrality” infringes on the right of an outlet to define what neutrality is. If the government can tell The New York Times what is “fit to print” or Fox News what it thinks is “fair and balanced,” then the First Amendment offers no protection. As my colleague Charlie Warzel noted, taken at face value, the Texas law would ban editing Wikipedia—any deletion “could be deemed an act of censorship based on the viewpoint of that user.” This may sound like a far-fetched hypothetical, but Wikipedia’s failure to amplify Taibbi’s “Twitter files” to right-wing satisfaction is already prompting such complaints.
“If you have to highlight or promote or repeat certain information, you’re being forced to express the idea that all points of view are equally valid to you, and equally worthy of your time and energy and effort. That is a viewpoint,” Granick said. “The Court’s opinion tries to impose or imposes that viewpoint on platforms.”
In Citizens United, the Republican-appointed justices feared that restrictions on corporate electioneering amounted to state control of civic discourse, “muzzl[ing] the principal agents of the modern free economy.” But when the justices wrote that decision, they were thinking of corporations as allies of the conservative movement. The moment that perception changed, conservative views on corporate speech changed too. Last year, Republican Senate Minority Leader Mitch McConnell, a longtime champion of corporate electioneering, warned of state retaliation if private firms did not “stay out of politics,” by which he meant stop opposing Republican interests. It is wrong to “muzzle” the “principal agents of the modern free economy,” unless they do something Republicans don’t like. Then it’s fine.
Conservative complaints about Big Tech are only superficially distinct from their grievances with the so-called liberal media. That is, those frustrations are really about the failure of large media organizations to uncritically repeat right-wing propaganda, as more conservative media organizations do. A mainstream media outlet may fact-check, verify, or report out an allegation, while all too often, an outlet like Fox News will simply repeat, fortify, or amplify whatever politically convenient falsehoods emerge from the right-wing fever swamp. More to the point, which key stories Fox News withholds from its captive conservative audience is as important to shaping people’s worldview as what the network broadcasts. Few Fox viewers, for example, have heard from the network that Trump called for the “termination” of the Constitution and his reinstatement as president following Taibbi’s tweets.
The late federal judge Laurence Silberman last year called for the landmark New York Times v. Sullivan decision to be overturned because the Times and The Washington Post “are virtually Democratic Party broadsheets,” adding that “nearly all television—network and cable—is a Democratic Party trumpet.” The defamation precedent set by Sullivan has nothing to do with objectivity or neutrality; indeed, early American newspapers were vicious and explicitly partisan in nature, and the First Amendment could not have been intended to exclude them. The conservative conception of the “marketplace of ideas” has come to resemble conservative views on elections—they are functioning properly only when they provide the desired results.
Like the Texas and Florida laws, Silberman’s demand was simply state retaliation against media outlets for being insufficiently conservative. The logic is the same, whether conservatives are applying it to new media or to old: Private companies that are insufficiently right-wing should be disciplined by the state until they change. That is the type of state coercion the First Amendment was intended to prevent.
Fox News’s large audience and agenda-setting power allow it to influence the decisions made by its mainstream competitors, but right-wing social-media networks are relatively closed ecosystems and cannot serve the same purpose. The allure of controlling Twitter, in particular, is that the platform removes the middleman and allows for the direct dissemination of propaganda without verification to an audience broader than hard-core conservatives, and to bully any opposition, including people who decide what goes on the front pages or leads the evening news. Moderation policies, designed to keep more mainstream social networks profitable for advertisers, interfere with both objectives.
Because social-media platforms are privately owned, they have their own First Amendment right to editorial discretion. To use them for their own political purposes, including propaganda, disinformation, harassment, and message discipline, conservatives had to invent a new constitutional right: a conservative right to post.
I’m not entirely sure when the conservative right to post first began to emerge. It was probably around 2015, when Donald Trump used Twitter as the main platform for his presidential campaign, and when the site was pressured to crack down on racist harassment and Islamic State propaganda, particularly after ISIS used social media to disseminate video of its execution of the journalist James Foley. Conservatives urged Twitter to ban ISIS from its platform, but they were far more ambivalent about its subsequent crackdown on white-nationalist accounts, many of which were and remain strongly supportive of Trump’s candidacy.
[Read: The internet won’t be the same after Trump]
The point of these crackdowns, however, was not to promote liberalism or the left but to ensure that the platform remained a profitable advertising space. Twitter’s initial “hands-off approach,” as USA Today reported in 2016, had “contributed to a dramatic rise in abuse, harassment and hate speech,” after which “revenue growth stagnated and public backlash increased.”
Social-media companies often promise a paradise of unrestricted speech, and then, as they find their platforms being used in ways they oppose, suddenly discover the virtues of moderation. The Techdirt journalist Mike Masnick has called this “the content moderation learning curve,” and right-wing “free speech” alternatives to Twitter provide poignant examples of the phenomenon.
As the EFF brief in the Texas case outlines, conservative social-media platforms such as Rumble, Gab, and Trump’s Truth Social retain their own moderation policies, in the interest of building and maintaining right-wing political communities and limiting the nature of conversations on their platform. Gettr, a social-media site founded by a former Trump aide, began shutting down comments related to allegations that one of its backers was a spy for the Chinese government. Trump’s Truth Social blocked content related to the former president’s attempt to stage a violent coup in an effort to retain power after losing the election, and also blocked comments that were in favor of abortion rights. Parler began banning people for posting photographs of excrement or pornography in replies to posts, or for making fun of the website. Rumble’s terms of service bar content that engages in “violence or unlawful acts, including but not limited to Antifa groups and persons affiliated with Antifa, the KKK and white supremacist groups and or persons affiliated with these groups.” Concisely summarizing the conservative right to post, the right-wing social network ProAmericaOnly promises both “no censorship” and “no liberals.”
These social networks, quite plainly, envision themselves not as open forums, but as ideological communities, which is their right. Anyone who logs on to such a site understands this, the same way you know what you’re going to get when you open The Nation or National Review or, for that matter, The Atlantic. But because they are owned by conservatives, there is no need for a broad legal theory asserting a right to use a private platform in ways the owners themselves don’t want. These right-wing social-media sites are “free speech” alternatives not because they refrain from moderating content, but because under the tenets of the conservative right to post, “free speech” just means the right controls the conversation.
Twitter is smaller than other social-media networks in terms of users, but retains outsize importance because of its use by elite figures and journalists and, consequently, the ability of other users to influence media coverage. Both left and right use Twitter this way, but the left has not invented a right to post for itself. Judge Oldham’s opinion is remarkable not just because of its disregard for the Constitution, but because it is an example of right-wing “posting law” migrating from guys with Confederate-flag avatars to the conservative elite.
Trump’s use of Twitter also shaped the character of the conservative movement, spawning a legion of feeble imitators who seek fame by catastrophizing about the liberal menace and engaging in thinly veiled murderous ideation against their political opponents. Posting has become the primary means for right-wing personalities and politicians to build brands and followings, in part by showcasing angry liberal responses to their posts. Posting has even supplanted governance for some ambitious politicians, whose policies and proposals become secondary to their performances on social media. Then there are those who are simply hooked on the emotional rewards of posting, and resent the possibility that their supplier may restrict their access.
But the right-wing fixation on social media wasn’t caused just by Trump. It also traces back at least as far as anger over a 2016 Gizmodo article that concluded Facebook had “spiked” conservative topics. Years later, John Cook, a former Gawker editor, reflected that the story showed Facebook engaging in “using human judgment to dismiss false or unreliable or uninteresting news,” which is “what news organizations do every day.” In other words, it showed the site using its constitutionally protected editorial judgment.
The problem, of course, was that Facebook had originally claimed that its trending topics were curated by algorithm and that people had nothing to do with it. The story sparked a right-wing backlash against social-media companies, which began bending over backwards to placate conservatives and exempt them from their stated rules as much as possible without allowing the networks to become cesspools. This has not mollified conservatives, because the backlash is simply too politically useful to abandon. Social-media companies’ documented suppression of liberal outlets and courtship of right-wingers has received much less attention, because liberals do not assert a similar right to post, and conservatives don’t care if the platforms suppress left-wing content.
Social-media companies invited criticism of this nature by claiming to be neutral platforms, rather than admitting that they are curated communities shaped by editorial judgment. Corporate gatekeepers to public knowledge have existed since the emergence of radio and television networks. The distinction is that unlike the social-media titans, those networks understood that their platforms came with a level of responsibility to accurately inform the public, even though they often made mistakes. Despite legitimate fears of social-media platforms’ influence, they are presently weak gatekeepers compared with newspapers and broadcast outlets in the past, at least in America. It’s hard to imagine something like Woodrow Wilson’s incapacitation remaining under wraps today.
The dishonesty of social-media companies also doesn’t alter the First Amendment. As Justice Clarence Thomas has noted, “Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.” Of course, Thomas was talking about a baker’s right to turn away gay customers for ordering a wedding cake; he may be as much of a believer in the conservative right to post as his Trumpist colleagues on the federal bench.
In October, Thomas, along with Gorsuch and Alito, dissented from the Supreme Court’s decision to stay the Texas law, which the Court seems likely to take up at some point. Masnick, of Techdirt, wrote that Alito, in his dissent, “seems extremely confused about a few important concepts,” but Alito has never needed to understand an issue to know which side to take.
After the suppression of ISIS content on Twitter, the company turned its attention to moderating the flood of racist harassment afflicting the platform. Twitter was trying to crack down on posts that might frighten advertisers, but conservatives felt targeted, because so much of what passed for right-wing political activism on the platform violated the terms of service. Instead of simply altering their conduct to conform to the rules they’d agreed to observe when they joined the site, they began to attack its moderation policies. That cause grew in urgency as Trump’s flouting the terms of service—and the obvious exemption from the rules carved out for him—caused Twitter public-relations trouble.
During the 2020 campaign, when Trump began attacking mail-in voting as a means to delegitimize a potential election loss, Twitter began affixing labels to Trump’s tweets characterizing them as misleading or false. Notwithstanding the fact that no speech is more protected by the First Amendment than the right to criticize government officials, conservatives began howling for Trump-led state retaliation against the platform, in the name of “free speech.”
Conservative rage against the social-media platforms grew incandescent in the waning days of the 2020 election, when some platforms limited the reach of the Post story about Hunter Biden’s laptop. The platforms reportedly feared that the story might have been part of a then-active Russian disinformation operation they had been warned about by federal law enforcement, a perception the Biden campaign encouraged. The Trump adviser Rudy Giuliani called for Jack Dorsey to be imprisoned.
Many observers—again, not just conservatives—criticized the platforms’ handling of the Hunter Biden story, and the president’s son remains under federal investigation for potential tax crimes. More mainstream outlets found no evidence of the Post’s major insinuation that the president had somehow participated in his son’s alleged corruption, a conclusion also reached by an election-year Republican Senate investigation. Such evidence may emerge, but for now only one 2020 candidate owns a business engaged in documented criminal activity, and it’s the inveterate poster.
The decision illustrated both the immense power of these platforms and their importance as conduits for political propaganda. Even though Twitter’s actions were protected by the First Amendment, the Hunter Biden episode nonetheless raised troubling questions both about the power of the platforms in the contemporary media ecosystem and about the difficulty of dealing with misinformation and the exposure of private data. But the Tornillo Court was similarly concerned with the “concentration of control of outlets to inform the public” posed by corporate consolidation of ownership over television, newspapers, and radio. The justices nevertheless concluded that “a responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated.”
“When you have an extremely powerful platform, powerful because it has so many users, the way that the platform exercises that editorial judgment is something that the public has an interest in. It can be a real concern that certain viewpoints are suppressed,” Granick, of the ACLU, said. “The answer to that problem, though, is to have a multiplicity of platforms, and to have a multiplicity of outlets.”
Some free-speech advocates, while agreeing that social-media platforms have broad editorial discretion, are nevertheless nervous about the breadth of the legal claims in these cases. “If there’s one thing the First Amendment protects, it’s the right of private speakers to decide for themselves what’s worth publishing, and what’s not worth publishing,” Jameel Jaffer told me. “On the other hand, if you accept the platforms’ view, then there’s virtually no regulation that will survive First Amendment scrutiny, even very narrowly crafted transparency legislation, or due-process legislation, or privacy legislation, interoperability legislation—all of these things can be characterized as burdens on editorial judgment.”
Few of Twitter’s conservative critics were interested in finding the right balance between these competing considerations. Instead, the main source of the rage on the right was that Twitter’s caution kneecapped a last-minute “October surprise” that could have thrown the election to Trump. Giuliani told The New York Times that he’d gone to the Post precisely because he did not want the material properly investigated before being published. “Either nobody else would take it, or if they took it, they would spend all the time they could to try to contradict it before they put it out,” Giuliani told the Times in 2020. He was not demanding a more responsible press—he was looking for a less responsible one.
Trump’s banishment from the platform for using it to attempt to overturn the 2020 election lent further urgency to the search for a legal doctrine that might justify a conservative right to post, part of a broader Trump-era ideological project of restricting rights to those who conservatives believe should have them. After four years of Trump appointments, the federal bench and the conservative legal elite were now full of people who had adopted this doctrine and were willing to write it into the law.
Right-wing objections are not about the platforms’ tremendous power, which is a genuine concern with no simple solutions. What the right wants is uninhibited control over platforms where it can influence nonconservatives. If the platforms remained as powerful and influential as they are now, and simply did everything conservatives told them to do, there would be no demands to regulate social media like telegraph wires.
Which is why the right celebrated when Elon Musk bought Twitter.
In late October, Nancy Pelosi’s husband, Paul, was attacked by a disturbed man with a hammer, who police have said was looking for the House speaker.
[David A. Graham: January 6 never ended]
Days after Musk’s purchase of Twitter was finalized, the billionaire tweeted a link from a right-wing conspiracy website putting forth a false rumor that Pelosi had been attacked by a gay lover, amplifying a conservative propaganda campaign meant to obscure the motives of the attacker, whose head was filled with the toxic waste that circulated easily on the platform even before Musk purchased it. A week later, Musk urged his followers to vote Republican in the midterm elections.
A group of users flooded the site with racist invective, apparently believing Musk’s purchase of the platform meant that the old rules would no longer apply—a foreseeable scenario, but one Judge Oldham had dismissed as “hypothetical” and “imaginary.” Misinformation about the midterm elections flourished on the platform, which has shed thousands of employees under Musk’s leadership. Musk, the self-proclaimed “free speech absolutist,” fired staffers who criticized his management in public or in private, and then joined conservative media figures in celebrating the firings as an appropriate punishment for having what they saw as the wrong political views.
The Tesla CEO reversed bans on many right-wing users, including Trump, but—exercising his editorial judgment—retained a ban on the conspiracy theorist Alex Jones, whom he finds personally offensive. Musk offered friendly engagement to right-wing accounts posting Nazi memes, and mocked a Democratic senator who had been impersonated by someone taking advantage of Musk’s new verification policy, which no longer provides verification of anything beyond a Twitter Blue subscription. He then began banning left-wing activists from the platform on the direct advice of his far-right fanboys. It was, in short, an auspicious beginning for Musk’s right-wing fans. As long as Musk uses his editorial discretion in furtherance of right-wing priorities, they will defend it.
Amid this chaos, advertisers began pausing their ads on the platform. Musk threatened to “thermonuclear name & shame” those who had withdrawn their funds, whom he accused of “trying to destroy free speech in America” by not giving Musk their money. Republican Senator Tom Cotton of Arkansas warned advertisers to “think carefully” before “throwing their lot in with the far left of the Democratic Party” by pausing their ads. Josh Holmes, a former aide to Mitch McConnell, that great champion of corporate free speech, announced that the advertisers were “begging to sit in front of a House panel next year to discuss their company’s participation in leftist corporate extortion.” The conservative activist Tom Fitton urged Musk to sue civil-rights groups that were urging advertisers to boycott the platform until Musk adopted moderation policies against “hate and misinformation.” Instead of calls to override Musk’s editorial judgment with state power, there were demands to use state power to punish those who chose not to support his venture.
Before Musk purchased Twitter, conservatives had wanted to use the power of the state to control the platform. Once he purchased it, they assumed it would now become a reliable conduit for conservative propaganda. So they threatened to use the power of the state to force private companies to sustain Musk’s venture, and to silence activists exercising their First Amendment rights to register their objections. All in the name of “free speech.”
[Read: The madness of Twitter]
Do not mistake my defense of the platforms’ First Amendment rights for affection. Despite their virtues, the platforms remain pliant mediums for every manner of scammer, hustler, and propagandist. The ubiquity of cellphones gives social-media sites broader reach than any of their predecessors, including television and radio in the mid-20th century. But they lack a sense of responsibility for how they are used or exploited, because they are vehicles for profit with few sincere civic commitments. I disagree with Musk’s editorial judgment and enthusiasm for right-wing agitprop; the legal implications of state control of editorial discretion just happen to be much worse.
By no means do conservatives have a monopoly on political propaganda, falsehoods, or even bigotry. Indeed, one could imagine a liberal proposal to combat “misinformation” that similarly attempted to extend state control over speech online. But neither has the left concocted a preposterous legal theory of freedom of speech that amounts to a requirement that individual platforms host, promote, or fund propaganda or else be subject to state retaliation or coercion.
Across the varied arguments advanced by conservatives in recent decades, one consistent principle is readily discernible: Where a speaker is engaging in activism on behalf of conservative causes, they have an unfettered right to freedom of speech. Where they are not, or where they actively oppose those causes, their speech is subject to state suppression. This holds true for all of these “free speech” controversies: Citizens United, education gag laws, attacks on public libraries, hand-wringing over “cancel culture,” and the latest demands for state control of social media. The pattern is so steady that one wonders whether the Court would have reached a different verdict in Tornillo if the ideological positions of Tornillo and the Miami Herald had been reversed.
Justice Kennedy may have meant it when he wrote, “The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” But few others in the conservative movement agreed. What they understood was that you have a right to free speech as long as you are saying what they want you to say.
