Since his takeover of Twitter, Elon Musk has insisted, over and over again, that one of his major goals for the massive social media platform is to protect free speech on the site. That’s a noble aspiration. The problem is that his behavior increasingly suggests either that he has no idea what that means, or, even worse, he does, and he’s just not being honest. Either way, Musk (and those who have somehow been persuaded that he knows what he’s talking about) could use a crash course in what does — and doesn’t — violate the First Amendment.
His behavior increasingly suggests either that he has no idea what that means, or, even worse, he does, and he’s just not being honest.
Let’s start with the so-called “Twitter Files.” Thursday, we got a second installment of the files courtesy of Bari Weiss. Last week Musk, together with Matt Taibbi, released the first installment: a trove of documents supposedly demonstrating that Twitter had inappropriately suppressed material relating to Hunter Biden’s laptop in the run-up to the 2020 presidential election at the request of individuals associated with the Biden campaign. In his own tweets reacting to Taibbi’s thread, Musk made two claims about the First Amendment. First, he wrote that “Twitter acting by itself to suppress free speech is not a 1st amendment violation, but acting under orders from the government to suppress free speech, with no judicial review, is.” Second, in response to another tweet about one of Taibbi’s supposed bombshells, Musk rhetorically asked “If this isn’t a violation of the Constitution’s First Amendment, what is?” In both cases, Musk’s claim is that the Biden campaign’s requests to have tweets taken down constituted not just a violation of the First Amendment, but an egregious one. In every possible respect, Musk is dead wrong.
If this isn’t a violation of the Constitution’s First Amendment, what is?
— Elon Musk (@elonmusk) December 3, 2022
The free speech clause of the First Amendment, like virtually every provision of the Constitution (except the Thirteenth Amendment, prohibiting slavery; and the Eighteenth Amendment, imposing prohibition), applies only to “state action.” A private business no more violates the First Amendment by banning particular types of speech in its operations than I violate the First Amendment by not allowing particular types of speech in my home. And although some have suggested in recent years that social media platforms, like Twitter, ought to be treated as if they were government actors for purposes of the First Amendment, the Supreme Court, in its one recent chance to endorse that argument, declined to do so. Thus, it is settled law that Twitter, at least acting by itself, cannot violate the First Amendment no matter what it does.
This brings us to Musk’s insinuation that Twitter’s actions violated the First Amendment because it was “acting under orders from the government.” There are at least two problems here, both of which would’ve been caught by any first-year law student (and plenty of undergraduates). First, the Supreme Court has made clear, for decades, that the government “normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of” the government actor. It is understood that government requests to private entities don’t meet this test absent proof that the private entity did not believe it had any choice but to comply. Even the most conspiratorial reading of the “Twitter Files” fails to uncover such evidence.
Second, for those who are inclined to assume compulsion even without evidence, the orders have to come from the government. In October 2020, when the Hunter Biden story broke, neither Joe Biden nor the Biden campaign were “the government.” (There is simply no question that presidential candidates, if not currently holding public office, are not state actors for constitutional purposes.) Conspiracy theorists can point to the fact that Biden’s running mate, Kamala Harris, was then a U.S. senator. But the requests in question didn’t come from her; and individual members of Congress, acting by themselves, have no power to compel anyone to do anything. True, Biden eventually won, and so, by Jan. 20, 2021, could be said to be the government. But the putative scandal here is what happened in October 2020 — when the president was Donald Trump. Finally, and in any event, much of the actual content of the tweets that the Biden campaign asked Twitter to remove were, by all accounts, pictures of Hunter Biden’s genitalia. Although there are circumstances in which sexually explicit material can be protected by the First Amendment, the idea that the First Amendment prevents taking down a sexually explicit image that the subject never consented to have posted on the internet is … preposterous. That would be like arguing that someone who posts revenge porn to the internet has a First Amendment right to have it preserved for all to see. Simply to describe that argument is to conclusively discredit it. The idea that the First Amendment prevents taking down a sexually explicit image that the subject never consented to have posted on the internet is … preposterous. Musk’s double-layered misunderstanding of the First Amendment has similarly informed his belated reaction to the rise of antisemitic speech on Twitter under his leadership. For instance, in defending the suspension of Ye (formerly Kanye West) from Twitter during a Twitter Spaces chat on Dec. 3, Musk claimed that his policy is to suspend tweets if and only if their content is itself unlawful. Here, he has the First Amendment wrong in the other direction. As offensive as they are, swastikas are not illegal. Individuals may not have a First Amendment right to post them wherever they want, but there’s a galaxy of daylight between things we don’t have a constitutional right to do and things that are illegal. It’s not exactly news that an eccentric billionaire with no formal legal training has no idea how the First Amendment works. But there are two problems in this case that make it newsworthy. First, Musk himself has claimed that one of his goals for Twitter is to increase “free speech” on the platform. If his definition of “free speech” is radically different from the current state of general public (and constitutional) discourse, it sure would behoove him to explain how — and why. And second, because of his impact and influence, Musk’s patent misunderstandings of what the First Amendment does and doesn’t protect (and to whom it does and doesn’t apply), and the actions he wrongly takes (or doesn’t take) in response, perpetuate misunderstandings among those who believe he has some special claim to expertise on the subject. As the Twitter Files document dumps continue, it’s clear that Musk not only lacks such expertise, he also seems wholly uninterested in developing one.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
