An Open Letter To Elon Musk


Setting Twitter aright should be a simple matter. Here’s what Elon Musk, Twitter’s new owner, should do.

Clean house. Start at the top, with Twitter’s top lawyer Vijaya Gadde. She and her legion of censors should be shown the door. They tried to transform idiosyncratic standards of taste into governing principles for what could and not be said on this quintessential public forum. They failed. Send them packing.

Musk bought Twitter because its corporate culture stifled free expression. Armed with a community standards policy vesting discretion in staff either to ban, limit or permit speech, the communications giant became a woke panopticon: an all-seeing beast that imposed, from its centralized command structure, a vision of the good, true and the beautify that accorded with the ideological preconceptions of the lawyers running the show.

Get rid of the lawyers. Every single one of them.

Replace these folks with first amendment litigators: Lawyers, and retired judges, who understand contemporary first amendment law. Create an infrastructure of review and appellate procedure that permits a party to challenge a post on first amendment grounds. The decisions makers will agree to decide the issues based on first amendment precedent.

Obviously, Twitter is not bound by the first amendment. It is not a governmental entity and it can do whatsoever it likes, within very broad limits, to restrict speech.

In recent years, Twitter is perceived to have taken a left-ward tilt. Eliminate the tilt and commit to being governed as though Twitter were a governmental body. This is consistent with Musk’s vision of Twitter as the digital common, or town green – the place where many of us go to exchange views.

I’m sure Gadde did her best to administer Twitter’s convoluted community standards policy. But, candidly, her best isn’t and wasn’t good enough for the republic. I no more want a woke corporate lawyer telling me what I can say that I do members of an activist group. No one owns the language or ideas.

During the past one hundred years, the first amendment has evolved to a point at which certain narrow exceptions to freedom of speech are recognized. A person can be prosecuted for speech that violates the criminal law, including true threats, incitement to violence and utterances associated with a conspiracy. The civil law penalizes defamation, invasion of privacy and other wrongful conduct. That’s enough.

Social media companies do not have to reinvent the wheel when it comes to parsing the line distinguishing protected from prohibited speech. Thousands of court decisions have resulted in legal doctrines most competent lawyers can recognize. When there are gray areas, disappointed litigants can take appeals. Truly complex and novel cases get decided, with finality by the Supreme Court. Twitter should simply vow to follow these standards.

Adopt adversarial procedures. Do not let the decision to remove content be initiated internally. To keep a case in court requires a party to bring the action. A court will only hear an issue if there is an actual case or controversy. Twitter should initiate online complaint procedure. To protect its own interests and the interests of the public at large, it can appoint, and staff, a public ombudsman’s office capable of initiating a take down procedure. There can be expedited process for truly egregious cases. There should also be a free speech advocate’s office, acting in much the same manner as a public defender does in the criminal system. The advocate’s role would be to advocate for freedom of speech.

Require written decisions on why a piece of speech is banned or an author taken down. Permit the aggrieved party to take an appeal. All of the participants in the process -- advocates and judges – should be trained lawyers. The company policy should be simply to follow first amendment precedent.

The system will be time-consuming and difficult to administer, but it need not be created from nothing. There are thousands of lawyers nationwide who can participate in the process – many of whom could do so on a part-time basis.

The benefits of this regime would be prohibition of what the first amendment prohibits: censorship based on non-content neutral principles – i.e., silencing a person for their political views. It will also force more attention on hate speech. The first amendment does not now prohibit hate speech, in part because it is so difficult to define. Yet social media companies routinely censor what they don’t like. I find it ironic that folks get so wound up, for example, about Alex Jones – I suspect he’s the target of more hate than what he has generated with his speech.

I’m rooting for Elon. I am rooting for Twitter. Above all, I’m pulling for the first amendment. You wanted to change the culture of Twitter, Elon. It’s far easier to do than you might have imagined.

Comments: (4)

  • Retort
    Hear Hear
    Posted on April 27, 2022 at 4:07 pm by Steve Biff Saunders
  • 1A Constitutional Scholar non-lawyer should be part of this team
    Excellent suggestion Norm. If Elon is considering your suggestion, inclusion of a non-lawyer, constitutional scholar, advocate should be added to the team. Musk stylish, non-traditional candidate, constitutional scholar, self-taught, Mensa, Ron B. Palmer; architect of the Palmer Systems Approach, Know Your Rights, First Amendment. Ron has a breadth and depth in First Amendment free speech beyond most trained lawyers. He does not have the trained biases that attorneys have inherited through their law training. Instead he is a pure rendition of First Amendment thought and interpretation. He would apply the purest form of 1A to twitter, providing an unique balance for the team.
    Posted on April 28, 2022 at 5:56 am by Sherry Palmer
  • Freedom of Speech and Morality
    If we have totally free speech where does morality and a moral conscience come in? If a lie is repeated enough people could truly see it as truth!
    Posted on April 28, 2022 at 10:58 am by Bill Rousseau
  • SMH
    Noted that Musk has already abandoned anonymous accounts, the exact accounts most important for Free Speech. Free Speech legal principles have nothing to do with the problems Twitter faced with misinformation. When short sellers from China attack Tesla’s stock price the censors will be back. In fact to remain an approved app for Apple and Google they will never leave Expect him to pay Peggy Noonan to tweet.
    Posted on April 29, 2022 at 8:57 pm by John Davidson

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