evelyn douek & Genevieve Lakier1evelyn douek is an incoming Assistant Professor of Law at Stanford Law School and the Senior Research Fellow at the Knight First Amendment Institute at Columbia University. Genevieve Lakier is Professor of Law at the University of Chicago Law School and Senior Visiting Research Scholar at the Knight First Amendment Institute at Columbia University. The authors would like to thank the team at the University of Chicago Law Review Online for their excellent work on this piece.
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There’s something weird going on in First Amendment politics. Until very recently, it was conservatives who were most associated with, and responsible for, the deregulatory tilt of the First Amendment and its embrace of a privately owned and operated marketplace of ideas. Progressives, meanwhile, were the primary critics of the expansive discretion granted to powerful corporate actors under what one of us has called the increasingly dominant “laissez-faire conception of constitutional liberty.”
But the rise of the power of social media platforms and the last half-decade of “techlash” have begun to upset these traditional alignments. In recent years, amid the constant controversies over platforms’ content moderation practices—that is to say, over the decisions platforms make about what speech to allow on their services—concern about the threat that private corporate power poses to freedom of speech has tended to be raised by conservatives. Meanwhile liberals—liberals!—have tended to be the ones defending the rights of these private actors to moderate content as they wish (albeit while also frequently demanding that the platforms do so more effectively).
These political realignments are playing out on two fronts and on two timescales: in the realm of ordinary politics and in the realm of judicial politics. In the realm of ordinary politics and media spectacle, Elon Musk’s deal to buy Twitter has become a locus of renewed public debate about the meaning of free speech in modern society. Musk has promised to undo many of Twitter’s content moderation policies because . . . something something “free speech.” In response, as the New York Times put it, “conservatives celebrate, and progressives cringe.” Indeed, Republican Senator Ted Cruz called the deal “the biggest development for free speech in decades.” Musk’s agreement to purchase Twitter has been a saga made for the headlines. He was buying it, then maybe not buying it. He derided those who feared a more absolutist vision of “free speech,” but also pledged to defeat the spam bots and comply with local laws (which often require censorship). He promised to transform Twitter into a private company, but also said that he will relist it in a few years. And who knows what else he will have said or done by the time you read this. Rarely do the ins and outs of a business acquisition involve so much drama and receive so much public attention.
It is not surprising that this story has generated so much public interest. Musk is a famously controversial figure who many love to hate, and Twitter is an important speech platform that punches above its weight in terms of public salience. But this focus on the Elon Musk story risks missing the forest for the trees. While Musk enjoys his ego-trip, on the other front—in judicial politics—much bigger tectonic shifts are happening in the First Amendment firmament, shifts that may fundamentally reshape the online speech environment far more than one billionaire ever could.
In recent years, concern about anti-conservative bias on social media platforms, and liberal domination of the media more broadly, have pushed conservative lawyers and judges to develop new theories of how the First Amendment applies to (at least some) corporate speech intermediaries. These theories are now being tested by the raft of social media regulations that have been recently enacted in Republican states. First Amendment challenges to these laws have begun wending their way through the lower courts and look headed, ultimately, for Supreme Court review. There are good indications, so far, that a significant number of justices are open to reconsidering whether the First Amendment does in fact require a laissez-faire approach in this arena. Most strikingly, in a recent order vacating the stay of a district court injunction of Texas’s new social media law (what we will call the “H.B. 20 order” after the name of the relevant legislation), three conservative and one liberal member of the Court voted to allow the law to go into effect even though, under existing doctrine, the unconstitutionality of good portions of it is quite clear. The four dissenters—and the bizarre political coalition they represent—put the instability of current First Amendment doctrine on full display. Who knows what these justices will do when the matter comes back to the Court soon—as it surely will.
All of which is to say, First Amendment doctrine today stands at an inflection point, and Musk is more along for the ride than steering the ship. Musk may be the very embodiment of the laissez-faire conception of the First Amendment—using capital to “fix” problems in private speech regulation—but this is unlikely to change the significant political realignments happening in First Amendment debates, including the abandonment of the free market model by those who have long been its biggest champions.
These openings to revisit the cultural and doctrinal conceptions of the First Amendment should be welcomed, if not the particular form in which they come. We should not now romanticize the old laissez-faire model. Conservative motivations for this about-face may not be pure and the results they arrive at may be politically biased, but they have a point about the dangers of granting private platforms unconstrained power over speech—a point liberals have long agreed with. These liberals should not look a gift horse in the mouth (or, perhaps a better way of putting it: beggars can’t be choosers). In other words, the shifting politics of the First Amendment open up new possibilities—if also new dangers.
This Essay explores the changing politics of the First Amendment and how they are manifesting in public and legal debates. It argues that the Musk/Twitter saga is a product of these politics and provides a useful case study. By starkly illustrating the promises and perils of the laissez-faire model, Musk’s antics provide a good opportunity to take stock of where we stand and what this moment tells us about the possible future of online speech and the world that the Supreme Court will be contemplating when it weighs in on the topic in the not-too-distant future.
I. Topsy Turvy First Amendment Land
It was not so long ago, in the halcyon days of 2019, that all seemed as per usual in First Amendment land. When the Court decided Manhattan Community Access Corporation v. Halleck (2019), a case concerning the rights of private cable operators to exclude certain film producers from access to their channels, it split along unsurprising partisan lines. All five conservative justices then on the Court joined Justice Kavanaugh’s majority opinion, which strongly affirmed a market-based view of expressive freedom and a highly formalistic conception of the state/private action distinction. Meanwhile, the four liberal justices joined Justice Sotomayor’s dissent, which argued for a less formalistic approach and a view of freedom of speech as something that might at times constrain, rather than always empower, private corporate actors who exercise power over others’ speech.
This split between the majority and dissent in Halleck reflected a long-standing division between liberal and conservative members of the Court about the meaning of the First Amendment’s Free Speech Clause. Since the 1970s, Republican-appointed justices have interpreted the First Amendment to require what Justice Douglas described in 1973 as a “laissez-faire regime” of speech regulation. That regime largely prohibited the government from imposing limits on powers that private media companies and property owners otherwise possess to permit or promote speech. The Democratic-appointed justices, in contrast, interpreted the First Amendment as allowing the government considerable power to constrain these private speech regulators’ discretion when doing so advanced important goals—such as preventing the distorting effects of corporate wealth on the integrity of the political process, protecting against race- or gender-based discrimination, or promoting other kinds of equality.
This partisan divide did not show up in every case, but it explained the outcome in many cases—including very famous ones, like Buckley v. Valeo (1976) and Citizens United v. FEC (2010). And as of 2019, it appeared relatively stable. Indeed, Justice Kavanaugh’s opinion in Halleck—the very first First Amendment opinion that he wrote for the Court—endorsed the laissez-faire interpretation of the Free Speech Clause in a strikingly full-throated manner. Kavanaugh argued that the purpose of the First Amendment, and the state action requirement embedded in it, was to guarantee a “robust sphere of private liberty” in which “individual liberty and private enterprise” could flourish.
Kavanaugh therefore insisted that private persons’ decisions about regulating speech on their property or service almost never triggered First Amendment scrutiny, no matter how important that property or service was to public discussion. This conclusion was widely read at the time as a decisive rejection of the idea that social media platforms might be subject to First Amendment constraints because of their public importance as “the modern public square,” which Justice Kennedy had hinted at in his opinion in Packingham v. United States (2017) a few years earlier. Instead, Kavanaugh reaffirmed the strong and highly formalistic public/private divide that had come to characterize First Amendment doctrine, and the rest of the conservative justices on the Court joined him in doing so. The opinion appeared to be yet another sign of the tendency of the conservative justices to prioritize “the liberty of the property owner to make whatever use of its property it desires, rather than the liberty of the speaker to participate in public debate.”
But the commitment by the conservative members of the Court to this laissez-faire conception of freedom of speech may be far less entrenched or absolute than it seemed in 2019, at least when it comes to social media. It turns out that First Amendment discourse, and perhaps also doctrine, is not immune to Silicon Valley’s disruptive effects. That is the lesson of the last half decade of debates about tech regulation.
It was revelations about Russian interference in the 2016 U.S. Presidential election, and Facebook’s Cambridge Analytica scandal, that brought about the first ever Congressional hearings with tech platform CEOs. In the years following, such hearings became commonplace. Although initially (comparatively) bipartisan in flavor, these hearings quickly became strongly partisan. Conservatives took up and ran with accusations—never proven—that Big Tech is biased against conservatives. Meanwhile, progressives blamed Trump’s election on social media platforms’ failure to police “fake news,” and argued that platforms’ prioritization of engaging and inflammatory content favors conservatives and produces a toxic speech environment.
The result was pervasive, but very divided, discontent about how social media companies moderate speech on their platforms. Over the past few years, Congressional hearings have become split screen realities in which Democrats berate platform CEOs for allowing mis- and dis-information to run rife on their services, while Republicans berate them for removing content at all. The newfound Republican displeasure with the undemocratic (you know . . . private) power that platform executives wield was summed up by Ted Cruz when he yelled at Twitter’s then-CEO Jack Dorsey: “Who the hell elected you and put you in charge of what the media are allowed to report and what the American people are allowed to hear?”
This platform-bashing has become a prominent talking point in conservative politics and has changed the way those on the right talk about freedom of speech and the First Amendment. This was thrown into stark relief following “the Great Deplatforming” of Donald Trump after the January 6 insurrection, when many social media platforms—and all of the major ones—banned the then-president from their services. While many on the left celebrated the decision, conservative politicians accused the platforms of “censoring” Trump’s speech and violating “the free speech of American citizens.” The Republican Study Committee—a conservative caucus in the House of Representatives—tweeted that such censorship “runs contrary to the principle behind our First Amendment!” In an ironic and now-iconic image, Representative Marjorie Taylor Greene of Georgia wore a mask emblazoned with the word “CENSORED” on the floor of Congress. And in a move that was more rhetorical flourish than valid legal claim, Trump filed lawsuits against Twitter, Facebook, and YouTube alleging that their decisions constituted First Amendment violations, saying that “[o]ur case will prove this censorship is unlawful, unconstitutional and completely un-American.”
The change in conservative views on free speech were not just rhetorical though. Republican legislators in many states began to argue for and enact laws that would limit the ability of social media companies to moderate content on their platforms. Indeed, one analysis found that Republicans in 33 states have introduced anti-content moderation bills in the wake of the January 6 deplatforming. These laws repudiate the longstanding position of Republican lawmakers that protecting freedom of speech requires strong protection for private corporate power. Instead, they assume—and in some cases, explicitly assert—that protecting free speech requires extensive state intervention into the operation of private platforms. Florida’s social media law, for example, argues that “Floridians increasingly rely on social media platforms to express their opinions” and because “[s]ocial media platforms hold a unique place in preserving first amendment protections for all Floridians,” they therefore “should be treated similarly to common carriers.” When he signed Texas’s social media law, the state’s Republican Governor similarly stated that “[w]e will always defend the freedom of speech in Texas” and that the law was necessary to “protect first amendment rights in the Lone Star State.”
It cannot be emphasized enough how profound a departure this view is from what had been, just a few years earlier, the orthodox conservative position on free speech. In the net neutrality debates, Republican lawmakers had argued against government interference with the rights of internet service providers to determine how to treat traffic on their services. In 2015, for example, Ted Cruz wrote an editorial in the Washington Post in which he argued that “[w]e should keep the federal government out of the business of regulating the Internet” in order to protect it as “a haven for . . . entrepreneurial freedom.” By 2020, in contrast, Cruz was arguing vigorously for federal action to prevent Twitter and other private social media companies from “violat[ing] . . . the principles of the First Amendment.”
This new conservative pro-regulatory view of free speech has started to make its way into judicial opinions, too. Although many conservative judges have continued to hew to the laissez-faire model of freedom of speech, those more aligned with Republican party ideology have sometimes started to articulate different views. In 2019, Justice Thomas made waves when he argued that the canonical decision in New York Times v. Sullivan (1964), which gave significant protection to the corporate press against libel suits, should be overturned. But other judges were soon to follow, and Justice Thomas’s views were also taken up by conservatives outside the courts. Then, in a recent opinion, Justice Thomas broke from the laissez-faire consensus even further when he suggested that public accommodations or common carrier laws might be applied to the social media platforms without violating those platforms’ First Amendment rights. Thomas concluded by predicting that the Court would soon “have no choice” but to revisit how First Amendment doctrine applies to social media platforms.
Justice Thomas is almost certainly right about one thing: it seems inevitable that the Supreme Court will soon—perhaps very soon—have to address how the First Amendment applies to social media platforms as cases concerning these laws bubble up through the courts. Indeed, one of the consequences of the breakdown of the laissez-faire consensus has been a flood of litigation, much of which advances novel or previously off-the-wall interpretations of the First Amendment. Some of these interpretations may be gaining ground. Recently, the Fifth Circuit Court of Appeals strongly hinted at its receptivity to the argument that social media platforms could be subject to “must carry” rules like common carriers when it struck down a district court order that enjoined the enforcement of the Texas social media law. The Supreme Court split 5–4 (5–4!) in its H.B. 20 order granting the emergency application to vacate the Court of Appeals’ stay. The order was a clear signal that the Court is eager to take up one of these cases soon but was much less clear about what the outcome might be when it does. Justice Alito’s dissent made it sound like everything was up for grabs. “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies,” he wrote. That Thomas and Gorsuch joined this opinion is perhaps not surprising, given their previous statements indicating a willingness to revisit long-standing First Amendment precedents in the face of a changing information ecosystem. But Justice Kagan’s unexplained dissent was more of a surprise and suggests that she may be open to doctrinal reimagination too. As the indications pile up that little in current First Amendment doctrine can be taken for granted, lawmakers and courts are together changing the face of online speech regulation at a pace that is hard to keep up with, let alone write about contemporaneously.
The upshot (or, perhaps more appropriately, tl;dr) is that First Amendment politics are more complicated, uncertain, and, well, just plain weird than they have been in a long time. Will the politics around social media be disruptive enough to disturb established First Amendment orthodoxy? Is the gravitational pull of the new conservative party line around platforms enough to cause judges like Kavanaugh—who have shown steadfast commitment to a laissez-faire free speech ideology—to change their view of the First Amendment and vote to uphold extensive regulation of platforms? Or are Justices Kagan and Barrett, whose views are largely unknown, open to striking out in a new direction? Is the First Amendment at a radical inflection point, or is it just experiencing minor headwinds on its deregulatory forward march?
II. Elon Musk and the Everyday Politics of the First Amendment
Courts do not rethink doctrine in a vacuum. Shifts in the judicial politics of the First Amendment are reactions to shifts in cultural understandings of, and debates about, free speech. It is therefore worth asking how, if at all, a sudden disruption of the day-to-day politics of free speech might affect these shifting judicial sands.
Enter Elon Musk, whose deal to acquire Twitter by the end of 2022 and promise to let Trump back on the platform set off an avalanche of commentary and speculation about what it meant for the present and future of online speech. Musk’s own politics defy simple categorization, but there’s little doubt that his plans for Twitter pander to—and have delighted—conservatives. He has publicly agreed with conservative claims that platforms like Twitter have a left-wing bias, and asserted that a primary—if not the primary—reason he sought to buy the company was to wind back many of its content moderation rules. He has also said he’s “against censorship that goes far beyond the law.” It’s not clear that Musk has thought through what this would mean around the world. But in the United States, with its First Amendment, this almost certainly means far fewer rules restricting content than Twitter currently has.
Who knows how seriously to take Musk’s vision for Twitter. There are signs that he’s open to changing his mind on how far to push the whole “free speech” thing, and Donald Trump has said he won’t go back on Twitter even if Musk let him. Much of the commentary about Musk and Twitter has had the feeling of political horse race coverage, focusing on the latest twists and turns of the day. On the most basic level, Musk buying (or even proposing to buy) Twitter is an important reminder of how vulnerable the online information ecosystem may be, as a factual matter, to the influence of a single man. But no matter what happens, Musk’s potential buyout raises a deeper question about the larger dynamics at play in First Amendment law and how responsive the tug-of-war over the meaning of free speech today might be to such developments.
There are reasons to think that Musk’s purchase of Twitter could affect the convoluted contemporary politics of the First Amendment. On the one hand, if Musk actually follows through on his promise to provide a more censorship free Twitter, it could take the urgency out of the conservative project—both political and judicial—to limit platforms’ discretion over speech. As a matter of pragmatism, politicians and judges might decide that there is no need to change existing First Amendment doctrine in pursuit of partisan ends if the real-world outcomes of platform discretion appear to be trending in favor of conservative speech. Indeed, there’s evidence that the mere announcement of Musk’s acquisition led to an influx of followers for prominent conservatives on Twitter.
Conservative angst may diminish even more if Musk’s moves are a harbinger of broader industry changes. Until now, content moderation has been a one-way ratchet towards ever greater speech regulation, with rules rarely getting rolled back once written. But conspicuous examples of overzealous moderation of content that later turned out to have validity—like the New York Post’s story about Hunter Biden’s laptop, the lab leak theory, or mask ad bans early on in the pandemic—have created misgivings about the effectiveness of content moderation as a cure for underlying social and political problems. It’s also true that platforms tend to take their cues from each other, perhaps to avoid being outliers singled out for criticism. When one platform makes a high-profile decision—like banning Alex Jones or Donald Trump—it often sets off a domino effect where the rest shortly follow. It’s therefore possible the changes Musk makes at Twitter have effects beyond Twitter, in the most visible (and politically salient) cases, at least.
Should it appear that there is a broader “replatforming” of conservative speech (whether because this is what actually happens, or because this is the impression given as a result of a few high-profile reversals), it might not only address the cause of conservatives’ discontent but also deprive them of their political talking points. To the extent that content moderation laws have often been the product of political posturing, that becomes harder without obvious foils. Justice Thomas’s claims about conservative speech being “smothered” or “suppress[ed]” on platforms would lose their force, as would those of the many lawmakers who use similar rhetoric. Of course, this will only be true if there are broad and systemic changes across the industry. And while that’s a possibility, it may not be the likeliest outcome.
Musk changing Twitter could also be seen as an ironic vindication of the free-market thesis that has undergirded the traditional conservative interpretation of the First Amendment. On this view, the government should not intervene in private companies’ decisions, because if those decisions are “bad” or “wrong” the market will demand, and provide, alternatives. Musk literally buying his way to different content moderation—a different version of the commercial service that Twitter provides—might suggest that this thesis is exactly right and that keeping the government out of speech regulation is the best way to protect individual rights as they conceive of them.
On the other hand, there are good reasons to think that any political fallout from this moment may in fact only bolster the conservative recasting of First Amendment law. First, platforms such as a Muskian Twitter could provide political cover for doctrinal change by making those changes appear more politically agnostic than they might otherwise.
Second, Musk’s Twitter could provide proof of concept. Whenever a platform announces an intention to become a home for “free speech,” it is met with a flood of criticism arguing that no content-moderation-free platform would work in practice or be attractive to platforms’ users, advertisers, and service providers. But if Musk makes his vision of a more “free speech” Twitter a successful reality (or a successful mirage of one), or if any of the other so-called alt-tech platforms take off, these skeptics may have to eat their hats.
Meanwhile, Musk has illustrated how social media politics can create some strange First Amendment bedfellows. Fear of Musk’s takeover could lead those on the left to be more willing to aggressively regulate social media companies than they have proved up until now. A successful “free speech” platform will only turbocharge liberals’ fears about disinformation, hate speech, and other harmful online content. The fact that that “free speech” platform is Twitter also means that those on the left will not be able to use one of their favorite regulatory mechanisms, antitrust law, to discipline it. This is because Twitter just isn’t that big, in terms of market share, and Musk acquiring it does not raise concerns about market consolidation. Hence, Musk might encourage greater bipartisanship when it comes to writing laws to regulate content moderation than we have seen so far.
There are historical examples that suggest how the takeover of important speech platforms by controversial tycoons can spur (bipartisan) regulatory action. As the historian Richard John has recounted, when the infamous robber baron Jay Gould took over the Western Union Telegraph Company in 1881, it “transformed the public debate over federal telegraph legislation” and did more to prompt state and federal regulation than any other event in the telegraph’s history. This was because even though “[f]ew Americans used the telegraph . . . many reviled Gould, and this made all the difference.” The parallels seem obvious.
It’s also worth noting that the world is not waiting for America to decide how to regulate Big Tech. There is barely a regulator in the world that is not drafting or passing some form of platform regulation, and Europe has recently finalized its own comprehensive law, the Digital Services Act. The possibility that platforms may choose to alter their global practices to comply with these laws has raised fears of a “race to the bottom” for free expression in which the most restrictive jurisdiction determines the rules that govern speech online everywhere. This fear may prompt U.S. lawmakers and courts to create new speech-protective laws to reclaim the field and push back against these foreign standards.
Of course, nothing is set in stone and there are so many variables that it’s impossible to predict factual outcomes, let alone political or legal ones. Will Musk go through with the Twitter acquisition? What will the platform look like if he does? Will Trump again take up the mantle of @realDonaldTrump and tweet his way back to the Presidency? How will other platforms react? The past half decade of American politics generally and tech policy specifically counsels significant caution for anyone who thinks they have any idea what might happen next.
On the whole, however, it seems likely that whether Musk buys Twitter or not—and whatever changes he makes if he does—it will do little to assuage conservative fears of liberal bias, even if other companies follow Musk in allowing Trump back on their platform. For one thing, if Musk buys Twitter, it’s possible he will fundamentally change how the platform operates, but there are significant economic and institutional incentives that will push him to maintain the status quo (more or less)—particularly if he plans to make Twitter more profitable, as he has promised investors he will. Advertisers, after all, are hardly going to be pleased with a hate-speech filled platform. Parler, Gettr, and Reddit provide ready examples of how quickly a commitment to free speech absolutism fades in the face of the daily reality of content moderation. That is, Musk is unlikely to provide the proof of concept for content moderation-lite platforms conservatives might hope he does. Ultimately, platforms’ content moderation policies may not be a product of their political interests so much as their commercial ones. (It would of course be ironic if this is what causes conservatives to rethink their First Amendment libertarianism.)
But more fundamentally, conservative fears of anti-conservative bias online and in the media more generally are likely to persist, no matter what Musk does or does not do with Twitter. These fears, after all, have persisted in the face of their consistent debunking and do not appear particularly responsive to the details of how content moderation actually works. For example, the judges on the Fifth Circuit that ordered a stay of an injunction of Texas’s social media law—which had broadly been thought to be dead-on-arrival—had just days earlier expressed surprise that platforms could delete whole categories of content and didn’t seem to understand that YouTube was a website.
This persistence may be because political discourse about content moderation emerges out of, and contributes to, the highly partisan struggle over public norms and values that is often simply called the culture wars. In much conservative discourse, the platforms, with their hate speech codes and prohibitions against health misinformation, stand for the coastal elites who threaten and show contempt for traditional values. For this reason, the fact that, as owners of the infrastructure of the digital public sphere, they possess almost unlimited power under contemporary First Amendment and statutory law to shape how it operates is likely to remain a problem for conservatives, no matter what Musk does or does not do. In other words, Musk’s takeover of Twitter might represent a victory in the @realDonaldTrump battle, but there are still the broader culture wars.
Although conservatives will almost certainly not completely abandon their longstanding commitment to a deregulatory First Amendment, it is quite unlikely that ephemera like Musk’s planned buyout of Twitter will do much to dampen the growing political momentum on the right for a social media carve-out from the laissez-faire rules that otherwise organize First Amendment law. One sympathetic tech overlord is unlikely to be enough to counterbalance concerns about the rest of them. Meanwhile it may incentivize action on the left by making evident the dangers of the laissez-faire model of free speech. And this may well be a good thing.
III. How the First Amendment Sausage Gets Made
The purpose of recounting this potted history of the First Amendment and Elon Musk is not just to tell a rollicking story. It also surfaces some deeper lessons about how free speech culture and doctrine are imagined, and reimagined, over time.
These lessons don’t come from Musk himself, whose familiarity with the First Amendment’s meaning or history do not seem . . . encyclopedic. Indeed, it’s not at all clear that Musk realizes the wide variety of spam, porn, graphic violence, targeted abuse, fraud, information operations, and platform manipulation he would have to allow if he really did insist Twitter not take down anything that was protected by the First Amendment. More generally, as this Essay has argued, Musk and his persistent trollish tweets about his plans for Twitter represent a distraction from the real reasons that this could be a transformational moment for free speech in America.
But the Musk Twitter saga provides a good opportunity to reflect on how the First Amendment works in practice. This is because it forces us to confront the extent to which First Amendment doctrine is a product of, and a response to, contemporary politics.
The First Amendment is often talked about in rigid terms, as if its meaning can be easily divined by reading the U.S. Reports. This is a strange way to talk about any area of constitutional law, especially now when so many areas of established doctrines that were long assumed to be fixed are suddenly in flux. The First Amendment is no exception. As the history recounted above suggests, the First Amendment has always been a site of intense political contestation and struggle. Its history has been a story of trend lines and transformation, rather than stasis and certainty. Judicial, as well as non-judicial, conceptions of freedom of speech have shown themselves to be historically and politically contingent—a response to the specific problems produced by the factual and political circumstances of a particular moment, rather than a product of abstract philosophical reasoning divorced from the real world.
But the fact that First Amendment law is a product of politics doesn’t mean that we should discount the ways in which struggles over the First Amendment’s meaning are shaped over time and on a different timescale than what we might call ordinary politics. In deciding cases, judges are constrained—or at least guided by—long standing beliefs, including about the meaning of the laws they interpret, the nature of governmental power, the importance of free enterprise, and (for some) a commitment to some form of judicial methodology. These judicial politics may explain, among other things, why only one other member of the Court has shown any support for Justice Thomas’s crusade against the Sullivan decision. Notwithstanding plentiful evidence that the conservative members of the Court distrust the liberal media, they have been unwilling (so far) to act against this pillar of the contemporary First Amendment.
The Musk saga, and the ongoing fight about the meaning of free speech on social media platforms, raise the question of how likely these commitments are to survive when they come into conflict with important political interests. Kavanaugh’s commitment to the laissez-faire model has been unwavering. Is there anything that could cause him to rethink it? Are there other justices who would be willing to sign on to an opinion (authored by Justice Thomas, most likely) that would require social media companies to have “free speech” content moderation policies like those Musk wants for Twitter? Alito and Gorsuch have now sent a strong signal in the H.B. 20 order that they might be. Conversely, will liberal members of the Court be willing to come along for the ride and read the First Amendment to allow for more regulation of the platforms, given the obvious shortcomings of a system that grants capricious billionaires so much power to set the terms of public debate? Is this what Kagan’s unexplained dissent from the H.B. 20 order to stop Texas’ social media law from going into effect indicates?
These are questions whose answers will shape the future of the First Amendment and the digital public sphere. Old precedents cannot do so on their own. This means that novel claims about how the First Amendment applies to private platforms that reject the simplicity of the laissez-faire model—made both inside and outside of courtrooms—should not be dismissed as ignorant ramblings just because they are new. What they reflect is an attempt to translate changing political realities into doctrinal form.
This attempt, it is important to reiterate, is not necessarily a bad thing. Although conservative fears of platform bias may be overstated, they reflect an intuition that what people say and do online matters tremendously to the public and to democracy. It is therefore unsatisfactory to leave decision-making over the online public sphere to the arbitrary whims of private companies or individuals. This intuition is surely correct, even if what it means for First Amendment doctrine is highly contested, and its real-world relevance is made glaringly self-evident by Musk’s takeover of Twitter.
The fact that the doctrine may evolve in response to the new problems created by the immense and growing power of social media platforms is thus perhaps something worth embracing rather than resisting. This is true even if it might mean the further splintering of the First Amendment into technology-specific rules. This is unlikely to lead to a broader rethinking of First Amendment rules and the power they grant private corporate media companies (although one of us holds out hope that it will). But even if there is no more ambitious First Amendment reform, we shouldn’t cut off our nose to spite our face in the name of rigid uniformity. The internet has created a genuinely new and different speech environment, and piecemeal change that recognizes this can be worthwhile. There is no need to assume that the First Amendment should stay still while the world evolves.
It’s a fun time in First Amendment land. Every day seems to bring (sometimes literally) unbelievable headlines about online speech and its regulation. These headlines put the instability of First Amendment doctrine, as well as the deficiencies of a rigid laissez-faire model of free speech, on full display.
Whether a significantly changed First Amendment emerges as a result of the quickly shifting ideological valences this has precipitated is hard to predict right now. What is clear, however, is that support for the laissez-faire view of freedom of speech is weaker, both within the courts and beyond them, than it has been in decades. Elon Musk’s acquisition of Twitter—if it occurs—is likely to do little to alter this fact. If anything, it demonstrates the very obvious problems with the current model. These problems, once less obvious to conservative jurists, are suddenly becoming salient to justices across the political spectrum.
Musk’s vision for Twitter represents one vision of free speech that can roughly be summed up as “constraints on speech are bad.” But what the Musk case study demonstrates, above all, is how difficult it is to sustain that vision in the contemporary era, for both private platforms and government actors. Simple rules that can fit in a tweet are attractive, but even their most ardent advocates will eventually find their commitments tested by the complexity of the world. Do not be distracted by the story of a single man and a single platform. They are bit players in a much bigger ongoing struggle over what free speech means today.
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evelyn douek is an incoming Assistant Professor of Law at Stanford Law School and the Senior Research Fellow at the Knight First Amendment Institute at Columbia University. Genevieve Lakier is Professor of Law at the University of Chicago Law School and Senior Visiting Research Scholar at the Knight First Amendment Institute at Columbia University. The authors would like to thank the team at the University of Chicago Law Review Online for their excellent work on this piece.