Elon Musk Solves Twitter Problem the Old-Fashioned American Way

May 2, 2022 Updated: May 3, 2022


In recent days, two iconic American public figures, Elon Musk and Barack Obama—each in his own trademark fashion—struck a chord with wildly different audiences in the debate over freedom of speech and expression in this country.

On April 25, Elon Musk reached an agreement with Twitter’s board of directors to acquire and take the company private. He has pledged to pivot the platform toward respect for free speech principles, so that Twitter is “maximally trusted and broadly inclusive.”

Less noticed, a few days earlier, on April 21, former community organizer-turned-president Barack Obama addressed an audience at Stanford University. In a slick presentation, he challenged the relevance—the very worth—of “free speech” by most people. Obama said that what drives typical dissension from liberal orthodoxy is hatred and bigotry, conspiracy theory, state-sponsored disinformation (Russia!), and corporate propaganda. “Regulation has to be part of the answer to combating online disinformation.” The subtext? If control of Twitter slips from progressive hands, then the government should censor information, opinions, and participation there.

Many commentators dismiss the notion that what happens on Twitter is any affair of government. It’s a private business. Their platform, their rules. Nothing the company does challenges the First Amendment rights of users. That is the beginning and the end of it.

It’s not that simple. The First Amendment is not the issue. Twitter’s carte blanche to act as “thought police,” even in its own realm, is the result of special exemptions from common-law legal liability granted by Section 230 of the Communications Decency Act of 1996, federal legislation that preempted a patch quilt of state tort laws.

Under common-law principles, a content “distributor” bears no responsibility when content creators (writers) commit torts such as libel or intentional infliction of emotional distress. The classic “distributor” is a newsstand, bookstore, or library. But a “publisher,” such as a newspaper, magazine, or book publishing house, which regularly exercises editorial judgment, bears the same responsibility and liability as content creators they publish. You can take the publisher to court for damages.

At the dawn of the Internet, a bipartisan coalition in Washington granted online platforms the best of both worlds: the freedom to exercise the editorial judgment of a “publisher” and the liability exemptions of a “distributor.” Both political parties bought into the idea that freedom to moderate content was essential for Internet platforms to blossom, uphold community standards, and secure “decency” online.

But we live in an age of Orwellian dominant platforms, artificial intelligence, and mobile surveillance. The government has, in effect, licensed the private sector to censor political speech. Section 230 is the origin of Twitter’s freedom to remove tweets, suspend users, delete accounts permanently, “shadow ban,” and subtly manipulate algorithms to highlight or suppress whatever voices it chooses, without legal consequences. Were it not for Section 230, under common-law principles and state tort statutes, Twitter’s editorial conduct would trigger treatment as a “publisher,” not a “distributor.” The company would be hauled into court and held responsible for the consequences of whatever content that it does permit on the platform. With Twitter as a potential “deep pocket” in civil litigation, we would see a flood of tort cases that also name ordinary users of the platform.

No one expects simple repeal of Section 230 more than 25 years after its enactment. (In December 2020, then-president Donald Trump tried—he demanded “termination” of Section 230 and vetoed the defense budget of the United States when he didn’t get it. The veto override was swift and bipartisan.)

We should turn our focus, instead, to two realities: a small number of technology companies control the dominant platforms, and these companies were founded, or have been captured, by progressive ideologues. These are the most fundamental challenges right now to freedom of speech and expression.

There is little consensus about what might temper the stranglehold of Big Tech. The market will not necessarily self-correct: Some of these companies may be natural monopolies. Disruptive technology could knock these companies off their perch. It’s fair to say, the federal government won’t be of much help—Big Tech is too influential, savvy, connected, and supportive of political elites.

Elon Musk presents the first serious challenge to the domination of Big Tech progressives. And he’s doing it the old-fashioned American way: He’s buying Twitter out from under them.

Musk will unshackle more than speech and expression. In the background, we see another great debate and battle unfolding with the acquisition of Twitter—one keenly understood by Barack Obama—over our cherished value of freedom of association.

Barack Obama has a unique vantage point. He is still considered by many as the pinnacle of progressive power and prestige in this country. But we suspect Obama remains furious, to this day, about thunderous defeats at the hands of two grassroots movements. The Tea Party (“Taxed Enough Already”) installed a Republican Congress in the 2010 election, a knockout of the Democratic Party supermajority that passed Obamacare. The first Donald Trump presidential campaign derailed the so-called “third term” of the Obama Presidency under heir apparent Hillary Clinton.

Progressives were caught unawares in 2010 and 2016 because most of the so-called “grassroots” activism on the American Left is “astroturf”—movements created on-demand to affect public opinion, funded by wealthy elites at home, and sometimes interests abroad. They’re manufactured for show and not very effective. Projecting, most progressives thought the Tea Party was merely a front for the Koch Brothers, and the Trump campaign just Russia hiding behind a “clown car.” Former president Obama understands the danger of genuine grassroots movements better than most.

Freedom of association is at least as threatening to the modern Left as freedom of speech, and this may be one of the keys Elon Musk unlocks at Twitter. What’s important is not simply to express yourself, but to witness others speaking freely (you are not alone), to connect with others who share your beliefs and points of view, and to build networks and communities—all of this, progressives have actively suppressed for years.

Will Twitter, under Elon Musk, become the foundation for the next great grassroots movements that sweep our political system? Will progressives attempt to weaponize Section 230 to inflict censorship? We’ll be watching.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Tony Hall
Tony Hall is a former supervisor for San Francisco's District 7. He has held executive and administrative positions positions in seven different City departments in all three branches of government- Executive, Legislative, and Judicial over a 33 year period. He is also a highly regarded vocalist-entertainer in the Bay area.
Larry Marso
Larry Marso is a graduate of Stanford Law School and the Woodrow Wilson School graduate economics program at Princeton University. In New York, he practiced law at Cravath, Swaine & Moore, worked as an M&A investment banker at Morgan Stanley, and ran financial institutions M&A for UBS Paine Webber. He is now a Bay Area M&A adviser, technology consultant, and political data analyst.