Are social media platforms like Twitter legally allowed to censor you? Or does “free speech” only apply to the government?

Here’s a transcript of our conversation:

Emma: Hi, Brittany.

Brittany: Hi, Emma.

Emma: So we just recorded an episode about how Elon Musk purchased Twitter, which is huge. We’re big fans of this happening. Because he is someone who believes in free speech, imagine that. And now he owns this massive platform that has huge potential to really help people push back, I think, against, you know, overreach and share information. And, just a really fantastic thing to have happened. I feel like there’s been so many bad negative things to talk about over the last couple years. It’s really fun to have a good one. but kind of on that note, you know, it’s interesting because people have been talking for quite a while about this idea of big tech censorship and this idea that, you know, Twitter and Facebook and Instagram and all of these social media companies censor information and basically kick people off who post things that they find, you know, unacceptable. And, you know, there’s certain content moderation things that make sense to us. Like if someone posts something inappropriate or is posting personal information about others, it would kind of make sense I think, to most people that a company would, you know, remove it from their platform or remove the person who’s responsible for doing it respons. But it’s an interesting kind of scary territory that we get into when it starts to be, you know, someone says something critical of COVID vaccines or they say something critical of a politician, or they make a joke that some people think isn’t funnier, that people think is quote unquote harmful. It’s, an interesting thing. So a lot of people call this, you know, big tech censorship and that’s sort of like the phrase that is used to reference, you know, what I’m describing right now, which happens, you know, overwhelmingly to conservatives compared to, you know, sort of left-wing, liberal people. And I think it’s interesting that it’s called censorship because, you know, this may not be the most popular thing we’ve ever said on this podcast. And, you know, we’re all certainly free to disagree with each other. But I think it’s strange when we, use a term that basically references like government restricting speech when it comes to these tech companies, because at the end of the day, you know, Twitter still is a private company. Twitter still is its own entity. It’s independent of the government and, you know, they’re allowed as a business to do whatever they would like. And if that means kicking someone off their platform, even if it’s something that I really disagree with and I do, I think it’s terrible when a platform claims to support free speech and then doesn’t. But something that I think it would be good for us to talk about is what actually qualifies as censorship. And, you know, as we know, businesses and individual people, we have, or we’re supposed to have, at least in under the rules that are kind of set up for our country, we’re supposed to have the freedom to do most things, you know, other than harming other people. Or, you know, if you’re a business intentionally lying and misleading people that’s wrong, and violating contracts and violating terms and that sort of thing, that’s considered wrong. But generally, if you’re not harming anyone else we enjoy the right to do what we want. The government does not have that same Right. And when you read about the creation of America and the founding and the framing of the Constitution, basically what our founders and framers said was, the government can only do what we give it a really specific right to do. Which if you think about that, is actually pretty different from how we live today. Right. It feels like we can only do a few things and the government gets to do whatever it wants. That’s completely backwards from how it’s supposed to be. So it’s, I kind of wanna jump in a bit and talk about the difference between, you know, the government restricting people’s speech, which is true censorship and, you know, a tech company or a business kicking people off of its platform. Because we, I think we can all probably agree that both of those things are very bad. They’re dangerous, you know, it’s not healthy for our country and for our discourse, but they aren’t exactly the same thing. And I hear a lot of people kind of talk as if they are. So, Brittany, I know you have quite a background when it comes to like legal research and the First Amendment and all of that kind of stuff. Do you wanna give us just a super brief version on sort of what censorship actually means legally? I’m kind of putting you on the spot.

Brittany: No, you’re great. It’s funny, I’m glad you asked this because the First Amendment means so much more than people think. So, I mean, there’s the obvious thing that you have the right to say whatever you want, but you bring up a good point. That means you’re allowed to say whatever you want and the government cannot punish you or throw you in jail. The government. That does not mean, that if you say something to someone that they can’t get mad at you for, right? You don’t get to choose the consequences from private people, but the government cannot penalize you for doing such things. Now this is interesting cuz it’s not just speech. You are allowed to write whatever you want, you are allowed to, associate with whoever you want. There was a point in history where during what was called the Red Scare, communism was like the biggest boogeyman, and for good reason, but for the country. And there were some conservatives who were just crazy about it, and they were arresting people for being communists or for associating with communists. Meaning that like having friends that are communists, that’s not okay. We might not lo like what communists believe, but they have the right to believe it. And that’s why, you know, first Amendment’s so great is you have that right. You also have the right to burn an American flag. That is a freedom of expression. And that has been a big thing in the courts as well, because at first it was like, all right, the flag, you know, people hold such this, you know, this big attachment to the flag. And we’ve talked about this on a few episodes that that’s silly for a lot of reasons. But you do have the right to, you know, burn a flag. Another thing that the First Amendment protects that, that would be censorship is there are states where you can’t wear shirts with any sort of political thing on them when you go vote. And that doesn’t mean Canada or even like the things you’re voting for that are on the ballot. It could be anything that’s considered political. You can be arrested and given fines. Now that was, that would also be what we call censorship. So all these things, if the government tried to stop you or penalize you for doing these things, all of those things would count as censorship, even though it’s not all just things you say. So that’s what I think is fascinating about our First Amendment is it’s not just you get to say what you want without the government doing, you know, doing bad things to your ing you, it’s, you’re allowed to do all these things and the government cannot stop you from doing that. So that is what censorship means as far as the First Amendment is concerned.

Emma: Yeah. I think that’s a great thing to bring up is that the First Amendment is not just speech, right? It includes all of these different things that we have the right to do. And you know, when you use that word censorship, that’s a really big deal. That’s a, very big thing. And Brittany, I know you and I have talked about this a bit, but it’s interesting to me when, you know, we have people who say, well, this business shouldn’t be forced to serve this customer, you know, that they disagree with. Yeah. It’s interesting that you brought up to all of the different things that are included under the First Amendment because I think there’s sort of this misconception that it’s just the things that you say or maybe the things that you write or share online. but it’s, I mean, it’s a lot of different things and that thing that you said about wearing a certain t-shirt to vote was really interesting to me because I actually saw something out of Utah, and I believe it was actually Connor that shared it, but there was a hearing about a bill regarding vaccine mandates or something related to COVID, and this guy wore a shirt in there that had some sort of like, really just like, not at all offensive, a really basic thing on it. I forget what it was, but it was like, it was something where if you just read it and you were like a normal person walking in the street, you probably wouldn’t even know what it meant. I’ll have to find the story and we can put it in the show notes, but I thought that was so absurd because they removed him from the hearing or tried to, because you’re not supposed to wear apparently shirts with political things in like government offices or in public hearings or something like that.

Brittany: No, it’s just similar silly law.

Emma: Yeah. Which is funny to me too, because even in congress in DC if you ever have been to the capitol building and you walk through, there’s always these groups there who have, you know, their t-shirts on and they say like, support, blah, blah, blah, and they go from office to office kind lobbying the government as is their right. You know, it’s part of your free speech as you can petition the government. But, yeah, it’s interesting to me that all of the little ways that our speech is actually infringed on by the government. And you know, kind of on the other side of that coin too, it’s, you know, I hear a lot of people say Twitter is a public square, Twitter is the public square. And the funny thing to me to witness as this whole Elon buying Twitter thing has happened is I feel like there’s been sort of this reversal where before he owned Twitter, when it was owned by, you know, people who didn’t like conservatives and who were silencing them for their views wrongfully. So, you know, people on the right were kind of saying, well, Twitter is a public square, and not everyone, but a few people on the right were saying, you know, Twitter’s a public square. We all have a right to, you know, speak our mind on here no matter what. And some people were even saying that it was like a public utility and it should be regulated like a public utility, which was crazy to me. And then once Elon bought Twitter, the roles kind of flipped and all the people on the left that before were making fun of people who said, you know, Twitter’s a public utility, started saying the government needs to stop Elon Musk from owning Twitter because he’s gonna just turn it into a fascist nightmare. And like all of these absurd things. So I think one of the main takeaways from all of this is just that, you know if your opinion on stuff is not based on like a real principle or like a solid foundation or like an understanding of what free speech actually means and like what freedoms we have in this country as business owners and as individuals and you know, in that regard, it’s really easy to be kind of swayed one way or the other depending on what’s in the news. And I think we’ve seen a lot of people do that with this Elon Musk buying Twitter stuff. So, Brittany, I don’t know if you have any thoughts on that or sort of the big flip-flop that we saw with everyone talking about, you know, what they think about Twitter.

Brittany: No, I think you pretty much, you know, hit the nail on the head. Twitter is a, you know, private, it’s not a public utility. But, one thing, and we talked about this in the previous episode, that does not mean that they, just because they can abridge free speech, like doesn’t mean they should. Right? We should be encouraging civil discourse and this open dialogue everywhere. And it, you know, we, people used to say like, well, if you don’t like Twitter, get off Twitter and go join another place. But it was really hard to find another place. And yeah, a lot of, other tech companies made it really hard to even gain access to those. So I just think this is great. I think we’re gonna finally yeah, see a rebirth of free speech in private social media companies.

Emma: Yes, I sure do hope so. And it’s super encouraging at the end of the day to see someone at the helm who, you know, Elon Musk is not some conservative, you know, activist. He’s, I think he’s actually a Democrat, but he believes in free speech. And you know, we agree on that and I will keep using his platform cuz I love that there’s someone in charge that loves free speech. So agreed. We’ll wrap it up here today, guys. Thank you so much for listening and we will talk to you all again soon.