On Twitter and why free speech does not apply to platform

For those who keep forgetting, the First Amendment only protects you from the government limiting your free speech.

Elon Musk’s planned Twitter purchase has created the best argument as to why Twitter is not a de facto public town square and should not be legislated as such. Town squares cannot be bought and sold.

Town squares don’t have to operate as businesses, and most importantly, town squares do not have shareholders which they are beholden to.

Twitter is being sold for $43 billion precisely because Twitter has community standards, or, as some would refer to them, “rules which stifle free speech.” If Twitter were operated as a wild west of free speech, it would rapidly become filled with heinous images, illegal images and hate speech. In short, it would become 8chan and nobody sane is paying $43 billion for 8chan.

Twitter’s value is derived from the fact that it has become a popular social media site not just for the average user but also for politicians, actors, athletes and other celebrities. This combination of a platform for both the blue-checkmark crowd and regular users has created a social media site with approximately 217 million daily users. Now, how many of those blue-check-mark users would still use Twitter if it became filled with illegal images and blatant hate speech? What do you think that would do to Twitter’s value?

It shouldn’t have to be repeated so frequently, but for those who keep forgetting, the First Amendment only protects you from the government limiting your free speech. It does not protect you from businesses limiting your free speech and that obligation shouldn’t be placed on businesses. Nobody wants to go to a restaurant where people parade around inside with placards depicting dead babies as a protest of abortion. All reasonable people should be able to agree that the restaurant has a right to kick those individuals out. It would be bad for business and a massive degree of government intrusion. Those same principles apply to Twitter, Facebook and other social media sites.

Elon Musk understands this concept, too, despite the fact that he is disingenuously pretending that the principles of free speech apply to Twitter. Although the Twitter board accepted his buyout offer, no closing has taken place yet. If, during this period between the acceptance of the buyout offer and the closing, Twitter suddenly stopped policing all content and lost a plethora of users because the site became filled with illegal images and hate speech, Musk would sue Twitter and its board faster than a Tesla can go from zero to 60.

As hypocritical as his argument would be, he’d have solid legal footing for it. It would be no different than if a buyer signed a purchase and sale agreement for a property, and in the period prior to the closing, the seller stopped maintaining the property and allowed the pipes to burst. Musk would argue that he promised to pay $43 billion for a well-managed platform full of users and Twitter failed to deliver that at the time of closing.

Although it would be amusing to see something like that play out, it won’t happen, because the board recognizes the fact that they have a fiduciary duty to exercise care in how they manage a corporation’s affairs. If Twitter stopped exercising care in how it policed community standards, Musk would instantly pivot from complaining about the Twitter board stifling free speech to arguing that the board was negligent in its duties by failing to stifle free speech. He’d be right, too … because Twitter is a business, not a town square.