Elon Musk, recent convert to the cult of far-right fascism known as the Republican Party, is currently suffering history’s worst case of buyer’s remorse. He also claims to be upholding the principle of free speech absolutism in offering amnesty to the United States’ insurrectionist-in-chief — Trump — and countless malign actors, whose noxious utterances got them kicked off Twitter.

But no. Musk and the far-right are not free speech absolutists. They veil their racism, misogyny, hate and institutional insurrection behind the cloak of free speech and the First Amendment. They claim that anyone who dares criticise them is cancelling them. They give speech a bad name.

The question now is whether Musk’s Twitter is the apotheosis of the American ethic of open public discourse. As a Guardian headline fretted: “Elon Musk’s Twitter is fast proving that free speech at all costs is a dangerous fantasy.” No. What he is doing does not lay bare faults in the First Amendment.

Note well that the First Amendment protects speech — as well as assembly and dissent — only from government interference. “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment offers no protection for bilious blather in private settings.

Let us examine the components of speech. First, everyone has a birthright to speak. The original dream of the Internet was that it would empower new voices — but there are no new voices, only those that for too long were muffled by big, old, white, corporate mass media. Twitter enabled Black Twitter to create, as André Brock Jr. wrote in Distributed Blackness, a “satellite counterpublic sphere” in which “certain Black users separate themselves from mainstream, offline, and online publics.” It is their speech that threatened the white right and provoked their resurgent racism. As print begat the Reformation, which begat the Counter-Reformation, so the net enabled #BlackLivesMatter, which in turn induced the January 6 insurrection.

Second, speech includes criticism. The American right believe they have an inalienable right to speak without challenge and so against every complaint they issue cries of “cancel culture!” On Twitter, the Canadian philosopher Regina Rini perceptively categorised what’s happening. On one side are folks who suggest new entries into the glossary of things that should and should not be said in decent, polite society — not calling women girls, for example, or respecting folks’ choice of pronouns. On the other side are those who resent being scolded for what they say; she calls them the Status Quo Warriors. In their interplay is the renegotiation of societal norms. It is ever thus.

Third, speech includes choice. When editors, publishers, producers and, yes, platforms choose what to carry and what not to carry in their own spaces, they, too, are exercising their freedom of expression, a right that requires protection. Compelled speech is not free speech. To insist — as Republican legislators in Congress and at least two states do — that platforms must carry the terrible opinions of terrible people abrogates the rights of the editor, host, or moderator. One cannot imagine someone marching into the office of Kath Viner at the Guardian insisting she publish the putrid pronouncements of Nigel Farage; why, then, should we consider arguments that social networks should be told whom and what they must carry?

Fourth, free speech includes bad speech. For who is to define bad? Recall the wisdom of John Milton in Areopagitica pondering who should presume to be “made judge to sit up on the birth or death of books.” In the United States, we point with pride to the fact that Nazis were permitted to march in the Jewish village of Skokie, Illinois, in 1977 and Larry Flynt was allowed to publish his horrid Hustler, for to protect speech — to protect it from government interference — is to protect the worst of it, allowing all to exercise their birthright of expression without authoritarian control but subject to the response of critics and the choice of publishers. This, we believe, is the hallmark of democracy.

And that is where we begin to diverge from Europe and the United Kingdom. I am often told that Europeans give other human rights precedence over free speech — privacy, right of public image, protection from hate.

Take, for example, the new UK online safety bill and protracted debate over requiring online platforms to take down content deemed “legal but harmful” — or in the more poetic description of Stanford legal scholar Daphne Keller, “lawful but awful.” Legislators never acknowledged the reverse-tautology of the doctrine, for if government demands that legal content be erased then logically that content becomes, de jure, illegal.

The legal-but-harmful clause was just erased from the bill, but other troubling remnants of moral panic remain, regarding age verification to view pornography and government surveillance of personal communication with a ban on encryption (so much for the preeminence of privacy) as well as criminalisation for posting falsehoods (who, Milton might ask, shall determine official truth?) Index on Censorship declared that many of the provisions of the bill violate rather than protect human rights. The legislation’s aim is to make the UK “the safest place to be online” — this side of China, Iran, Turkey, Russia, Hungary, and North Korea. But the effect is to criminalise speech.

Internet regulation in the EU has produced a raft of unintended consequences, often granting platforms more, not less, power. Governments find themselves unable to cope with the scale of public speech online and so they deputise often unwilling intermediaries to do their dirty work. This has turned Facebook, Twitter, and Google into private regulators akin to the 17th century Stationer’s Company and their executives into latter-day L’Estranges.

Germany’s NetzDG hate-speech law has put Facebook in the position of deciding what speech is manifestly illegal, leading to overcautious — that is, overzealous — policing of speech to avoid fines up to €50 million. The European court decision on the right to be forgotten put Google in the position of deciding what should and should not be remembered — we should note that memory is how speech lives on. Article 17 of the EU Copyright Directive will surely lead to zealous policing of copyright, resulting in takedowns of innocent users’ comment, parody, and fair use. Article 15’s link tax, along with legislation in Australia that similarly forces platforms to pay for news content they link to, is likely what drove Facebook to stop carrying and financially supporting news in any form. I fear that equally ill-conceived legislation in the US, the Journalism Competition and Protection Act, could have a similar effect on Google’s financial support of journalists.

Add to this welter of regulation the recently enacted EU Digital Services and Digital Markets Acts — which, for example, require hosts of online conversations to explain takedowns and offer appeals, an engraved invitation to trolling and harassment. The result is a crush of compliance work forced on Silicon Valley giants. What’s so wrong with that, you protest? They can afford it. Yes, but new competitors cannot. As Twitter descends into the hellscape that is Elon Musk’s fevered inferiority complex and we wish for alternatives to rise, I fear arduous regulation will scare away new entrants.

Here in the US, we face our own regulatory perils. The right and the left are engaged in a pincer movement against our best protection for online expression: Section 230 of 1996’s Communications Decency Act, described in the title of law professor Jeff Kosseff’s book as The Twenty-Six Words That Created the Internet. Section 230 attempts to protect the quality of public discourse by at once providing hosts, whether platforms or news organisations, a shield from liability for problems with content created by users, as well as a sword to enable them to moderate that content. The left has gone after the platforms for not taking down hate speech and so they decry the shield. The right has protested that the hate speech taken down is often theirs and so they aim at the sword.

If Section 230 is denuded, I fear for the fate of our best alternative to Twitter yet, Mastodon, an open-source network of thousands of independent, volunteer-run servers. No one owns Mastodon, so no Musk can take it over. There are no algorithms there and so far no ads. Moderation is in the hands of volunteers. If they are not protected from liability by Section 230 — and if further legislation in the UK and EU puts more demands on them as hosts of conversation — these volunteers may find themselves at best overloaded with the work of regulatory compliance and at worst sued and fined out of existence. The irony and unintended consequence of regulation aimed at Twitter and Facebook could be that we are stuck with them both in their worsened and weakened states.

In my upcoming book, The Gutenberg Parenthesis, I argue there are lessons to be learned from the age of print, especially now that we seem to be leaving it. I recall the first known call for censorship in 1470 by Niccolò Perotti, a Latin grammarian much offended by a shoddy translation of Pliny. He beseeched the Pope to appoint someone who “would both prescribe to the printers regulations governing the printing of books and would appoint some moderately learned man to examine and emend individual formes before printing…. The task calls for intelligence, singular erudition, incredible zeal, and the highest vigilance.” Note that Perotti was not actually calling for censorship. He wished instead for the establishment of institutions to assure quality. Those institutions, of editing and publishing, would soon follow.

Today, editors and publishers, as well as regulators, cannot cope with a new abundance of speech — an abundance I celebrate, for finally those excluded from mass media might have their say and seat at the table where norms and culture are deliberated. One reaction to this inundation is to cry that there is too much speech, but who shall determine whose speech is too much?

Another reflex, especially in Europe, is to regulate, to control, to play Whac-a-Mole with bad speech, a futile endeavour. What we need instead is new or updated institutions to discover, recommend, support, and improve good speech and speakers, whose information, art, and experiences we may now hear. That is the true fruit of free speech.

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