How Elon Musk can free Twitter

Elon Musk wants Twitter to “adhere to the principles of freedom of expression”. It’s easier said than done. Pornography, racial slurs, and spam are all protected by the First Amendment, but few users want to see them. Even for narrow categories of speech that are not protected, almost all content blocking on social media runs counter to the first principle of freedom of expression jurisprudence – the prohibition of prior restriction or censorship without judicial control.

The first step in solving these conundrums is to recognize that different free speech principles apply in different contexts, and that there are three main types of forums. Speech protection is strongest in a “public forum”. If Twitter were such a forum, almost all content blocking would be an impermissible prior restriction. But Twitter isn’t a public forum, most obviously because it isn’t run by the government (although its censorship is sometimes at official request). At the other end of the spectrum is private property. If you are a visitor to someone else, they are free to kick you out just for offending them.

Between these poles are “limited public forums” – places generally open to the public where speech can be subject to reasonable regulation. However, one type of restriction is prohibited: point of view discrimination. This is how Mr. Musk should think of Twitter.

Almost everyone agrees that social media platforms should not engage in point of view discrimination, including the platforms themselves, who deny doing so. But of course they do. Conservative views on transgender are censored as “attacks” on a “protected group”. Conservative views on Covid are flagged as ‘misinformation’. In May 2020, Twitter censored as a “glorification of violence” President Trump’s tweet “when the looting starts, the shooting starts”, while leaving Ayatollah Ali Khamenei’s tweets calling for the destruction of Israel untouched. and Colin Kaepernick’s tweets supporting the Houses Police Station fire. Claims that Democrats stole the presidency in 2020 are censored, while claims that Russia did the same in 2016 remain intact – and of course, the true story of Hunter Biden’s laptop was deleted as “misinformation”.

This is a particularly difficult problem because Twitter and others smuggle viewpoint discrimination into supposedly neutral content moderation categories, primarily misinformation, incitement, and hate speech. Stopping this should be Mr. Musk’s first priority.

False speech is not necessarily protected, especially in a limited public forum. But even for clearly unprotected false speech, such as defamation, perjury, or false advertising, the law imposes a simple but crucial requirement in all of these cases: the plaintiff or prosecutor must prove that the statement was false.

Twitter and other platforms do not follow this principle. They and their “fact checkers” label content as “misinformation” when they simply deem it “unsupported”, “unproven” or “without context”. Without proof of falsity, these are just differing opinions about the truth – and there is no false opinion.

The Constitution also defines “incitement” narrowly. In Brandenburg vs. Ohio (1969), the Supreme Court held that incitement requires proof that the speech was both intentional and likely to induce “imminent lawless action”. If the rule is that speech can be banned when it “could” lead to violence in the opinion of Twitter employees, the category becomes broad enough to cover almost all speech, and it will be enforced against speech that they disapprove.

The ban on “hate speech” should end. Every Twitter user knows that countless tweets are hateful, but only certain hate speech is censored, depending on their view. Racist and sexist speech expresses an opinion, however odious it may be, and the prohibition of opinions is the very essence of point of view discrimination. This is why the US Constitution does not allow the government to prohibit hate speech.

Does this mean Twitter users, already inundated with snark, should also be inundated with racial slurs? No. Mr. Musk can avoid this outcome by changing the content moderation paradigm.

Twitter, like every other Big Tech platform, deploys centralized top-down censorship, dictating to users what content is too offensive for anyone to see. This model should be turned upside down: users should decide for themselves.

One way to do this is to use simple sign-up buttons. Mr. Musk could keep all of Twitter’s offensive speech protocols in place, but give each user the option to turn them on or off. If a user doesn’t want to see the hate speech, there’s no reason they should have to. The same goes for constitutionally protected sexually explicit material.

A more ambitious option would be to exploit artificial intelligence and develop an individualized filtering mode. Each user would decide for themselves whether to delete certain posts, and an AI algorithm would learn from their choices, creating a personalized filter. If Michael flags racial epithets or Laura deletes certain images, Twitter’s algorithms would be trained not to show them such epithets in the future. They would be free to change their minds and could adjust their settings accordingly. Mr. Musk might mock other Big Tech platforms for using an outdated centralized censorship model that is a relic of broadcast media when the technology now exists to run custom AI models.

One objection to this approach is that it could exacerbate online echo chambers. But users who want to see opposing viewpoints can instruct their filter to keep showing them tough opinions and facts. Users who chose otherwise would be no worse off than viewers of cable news. Such siloing may be an inevitable product of 21st century media and civic culture, beyond the power of any business to counter. But if we are stuck with such echo chambers, it is better that they are of our own creation rather than imposed on us by a central authority.

There’s no silver bullet to solving the intractable challenges of running a user-friendly social media business that also protects free speech. But these principles offer a starting point for a pragmatic path: design Twitter as a limited public forum, stop censoring views, and favor user choice over centralized content moderation.

Mr. Ramaswamy is an entrepreneur and author of “Woke, Inc.: Inside Corporate America’s Social Justice Scam” and “Nation of Victims: Identity Politics, the Death of Merit, and the Path Back to Excellence,” due out in September. Mr. Rubenfeld is a constitutional scholar and First Amendment advocate.

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