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Elon Musk is no free speech messiah

According to Musk, free speech costs about $3 billion.

Elon Musk standing and waving.
Elon Musk at a February 2022 press conference in Texas.
Jim Watson/AFP via Getty Images

A few days ago, Elon Musk asked his 81 million followers, “Is Twitter dying?

Musk calls himself a “free speech absolutist” — opposed to any restrictions on what someone can say online — and he has indicated he thinks the social media platform is heading in the wrong direction on the matter. Musk, as the CEO of two major public companies, has faced backlash and even legal repercussions for his impulsive tweets that have misled investors and caused his companies’ stock prices to fluctuate.

Now, he’s Twitter’s largest shareholder after buying a 9.2 percent stake in the company. The move has prompted whirlwind speculation around why Musk has bought such a large stake and what the future holds for Twitter. After Musk walked back plans to join the company’s board of directors over the weekend, Twitter CEO Parag Agrawal said in a note to the company that the decision was “for the best,” and urged employees to “tune out the noise” surrounding recent changes.

But it’s difficult to tune out Elon Musk, which underscores the reach he has as a famed tech entrepreneur and wealthiest person in the world. If his recent tweets are anything to go by, Musk is suggesting that he’ll try to use his stake in Twitter to turn it into the ultimate bastion of unhindered speech. On March 25, before the news of his investment had come out, he created a Twitter poll asking if the platform “rigorously adhered” to the principle of free speech. Overwhelmingly, his audience voted no. The next day he tweeted, “Given that Twitter serves as the de facto public town square, failing to adhere to free speech principles fundamentally undermines democracy. What should be done?”

The big reveal he was ramping up to, it seems, was that he had spent about $3 billion buying up shares to influence how the site should be run. Musk flexed his newfound power after his stake became public last week, asking in another poll, “Do you want an edit button?”

The power Musk isn’t talking about

Musk has seemed to portray his mission as a noble one — not undertaken for narrow, self-interested aims, but for the people. He would make the social media platform less restricted by rules, and give its users the features they’ve long wanted. Yet at the core of this saga is the fact that he has his own complaints about what he views as restrictions on his speech. And unlike most people on earth, Musk can demand Twitter’s attention by spending a tiny fraction of his more than $250 billion in wealth; billionaires like him have a shortcut to becoming the loudest voice in any room. Even before becoming Twitter’s top shareholder, he commanded an enormous presence on the platform as one of the most followed accounts, and enjoyed almost a mythical status as a genius Silicon Valley innovator. So it’s hard to see the Twitter buy as adhering to any democratic principles.

“[Twitter] is a global platform,” said David Kaye, a UC Irvine law professor and former UN special rapporteur for free speech. “So for somebody with a lot of money to just come in and say, ‘Look, I’m going to buy a part of this company, and therefore my voice as to how your rules are adopted and enforced is going to have more power than anybody else’s’ — I think that’s regressive after years of [Twitter] trying to make sensible rules.”

What makes Musk’s status even more exceptional is that Twitter’s other top shareholders are fund managers like Vanguard Group and BlackRock, not individuals. And now that Musk no longer plans to join the Twitter board, he’s also not restricted from buying a controlling stake in the company. At the very least, he can threaten to do so. That’s the kind of unspoken power Musk can purchase.

So what exactly does Musk take issue with when it comes to Twitter’s policies on speech? In recent years, amid a pandemic that highlighted the life-and-death stakes of misinformation, as well as the political chaos and violence fueled by election disinformation, Twitter has taken a more proactive approach to content moderation, flagging misleading tweets and even removing them in some cases. “Twitter has stepped away from this idea of it being the free speech wing of the free speech party, and being a more realistic custodian of speech on the platform,” said Kaye.

The most high-profile example of the shift is the suspension of former President Donald Trump, after he made a series of tweets supporting violence and disinformation around the 2020 presidential election. But Musk has not spoken publicly about Trump’s ban. To date, Twitter itself has not interfered with any of Musk’s tweets.

Musk’s actual free speech agonies relate to the US Securities and Exchange Commission, in a battle over what he, as the public face of a major public company like Tesla, can or can’t say in view of investors. In 2018, the SEC filed a complaint against Musk after he tweeted that he had secured funding to take Tesla private — which is why investors are currently suing him, saying the claim wasn’t true and that they lost money as a result of Tesla stock prices fluctuating after he tweeted. Musk reached a settlement with the SEC, paying a $20 million penalty, and was barred from being Tesla’s chairperson for three years. Crucially, the settlement also required Musk’s tweets to be internally reviewed when they concerned company information.

But while Musk is chair again, and even a $20 million fine is inconsequential for someone so wealthy, it’s clear he’s still bothered by the SEC’s restraints on tweeting. In early March, Musk submitted a court filing asking to end the SEC agreement, saying he’d been forced to consent to it. A letter his lawyer wrote to the judge who presided over the settlement claimed that the SEC’s “harassment” of Musk was “calculated to chill his exercise of First Amendment rights.”

Free speech advocates don’t exactly agree. “He’s got unlimited access to the media; he has unlimited access to any platform he could possibly want,” said Kaye. “He is not a victim in any way, shape, or form. He is a public voice that’s practically unimaginable in its lack of restriction compared to almost any other person on the planet.”

Musk could also face renewed SEC scrutiny for delaying disclosure of his near-10 percent Twitter stake; records show that he has been regularly buying Twitter stock since late January. Musk was supposed to file a disclosure within 10 days of crossing the 5 percent stake threshold, but he disclosed 11 days after his deadline. “The point here is not just the late filing,” said John C. Coffee, a law professor at Columbia University, who described the delay itself as akin to a misdemeanor like jaywalking, “but that he misled shareholders who might have bought and certainly could have sold at a higher price if this information had been disclosed. Those who sold can sue in a securities class action for their lost profits.”

Being accountable for what you say when you hold a position of power, one that comes with responsibilities and obligations and has the ability to harm others, is not the same thing as having your speech censored. “He should have recognized that his statements about his plans for Twitter needed to be approved or at least disclosed to management,” said Coffee, noting that Musk had a pattern of making “reckless statements that have not been reviewed.”

In other words, the problem seems to be that Musk can’t or won’t recognize how much freedom and power to speak he actually has. Anyone with internet access can tweet, but what sets billionaires like Musk apart is that they can use their money to have a greater say in who wins elections, what kinds of laws are passed, or even how we should deal with a pandemic. And when you’re a public figure with millions of Twitter followers, even a simple reply to a critic can send a torrent of harassment their way.

The real dangers to free speech

Maybe Musk’s current free speech crusade is only semi-serious. Maybe it’s just a way to taunt the SEC. But whatever his real motivations, his insistence on being the billionaire champion of online speech has a genuine impact — which undermines his complaints about his First Amendment rights being chilled.

“This is a huge distraction,” said Evan Greer, director of Fight for the Future, a nonprofit that advocates for digital rights. “It’s unfortunate, frankly, that people like Elon Musk, who are largely trolling about [the free speech] issue, have confused it so much, because I think it’s actually led to really harmful perceptions.” Some progressives have come to treat “free speech” as a dirty topic associated with people who want to spout hate speech, or with privileged people merely crying wolf about their voices being suppressed, she said.

“The reality is that free speech is in danger. There are laws going on the books across the country right now criminalizing teachers for teaching, banning books, criminalizing parents for providing their children with health care,” Greer said.

“If we have to worry about what Elon Musk thinks about content moderation, we already have a problem,” Greer continued. “There are too few companies that have too much power over what can be seen and heard and done online, and the fact that the richest man on Earth can just essentially buy the ability to influence our online discourse shows that we have a fundamental structural problem with the way that social media is currently organized.”

With a single move, Musk has purchased influence over an important, shared online space — what he called a “de facto public town square” — which means that as long as you keep using Twitter, you’ll have to listen to him in some measure. What will Musk do as Twitter’s most important shareholder? Will he commit to any standards of public transparency about how he’ll influence the platform? We simply don’t know yet. But the danger is that Musk doesn’t have to reveal much.

Musk’s Twitter stake highlights how the ultra-rich seem to view influence: that you can buy it, and there’s no shame in doing so, even if the outsize volume of your speech risks drowning out others.

In a recent op-ed in the Washington Post, former Reddit CEO Ellen Pao argued that Musk’s purchasing of influence over Twitter was unfair to its hundreds of millions of users who don’t have that kind of access. “We need regulation of social media platforms to prevent rich people from controlling our channels of communication,” she wrote.

Kaye believes that Twitter has been attempting to make space for a diversity of voices by taking a firmer stance against speech that harms and intimidates people — and the kind of absolute, unrestricted speech Musk appears to be calling for is a fantasy that would only chase people off the platform.

“Nobody who is acting in good faith really wants Twitter to be a cesspool,” Kaye said. “It’s just absurd. Frankly, it would kill Twitter.”