Yves here. Who’d have thunk it? The case of Elon Musk demonstrates that moving from a democratic republic to an open oligarchy is messy!
By Sara Talpos, a contributing editor at Undark. Originally published at Undark
Over time, social media has evolved to function as something of a town square, where Americans come to chat, share information, and organize. Unlike actual town squares, however, these platforms are private enterprises mostly controlled by a handful of billionaires, and they have become powerful gatekeepers for information, including about public health.
As private entities, technology behemoths like Meta and X are free to decide what content can and cannot appear on their sites. But what happens when the owner of a social media company also works for the government, as is now the case with Elon Musk, whose X bio briefly — and perhaps ironically — read “White House Tech Support” last week?
How does this affect First Amendment rights? If X, formerly known as Twitter, decides to suspend a user’s account, does this amount to government censorship? And does it matter that Musk is a special government employee, meaning he is subject to many, but not all, government ethics standards?
Legal experts will need to grapple with such questions, says Ari Cohn, lead counsel for tech policy at the Foundation for Individual Rights and Expression, or FIRE. The U.S., he says, is steering into uncharted waters, as the distinction between public and private actors becomes blurrier on our tech-mediated town squares.
Additionally, when it comes to public health, Cohn noted, the First Amendment applies — no matter which party is in power.
Our interview was conducted over Zoom, with follow-up via email, and has been edited for length and clarity.
Undark: Is Elon Musk a government actor whose ability to censor speech is restricted by the Constitution?
Ari Cohn: That’s a complicated question. We haven’t really been in this situation before.
Government officials do retain their own First Amendment rights, and not everything a government official does is acting on behalf of the government.
However, Elon Musk has held press conferences on Twitter. He communicates with the public about the work that he does for the government on Twitter. That does raise some First Amendment questions.
We saw reports that Musk was suspending accounts, and I don’t know if he was blocking people, but there were people who had their access restricted. When it comes to restricting people’s ability to a) hear from the government and b) engage with the government, that raises First Amendment issues. There’s a real question as to whether Elon Musk can prevent people from engaging with or reading his posts about government duties.
Then there’s another complicating factor: Blocking no longer prevents people from seeing things on Twitter. You can still see things, but you can’t interact with them. I think there’s still a problem because of the blocking of interacting with the government speech. It’s a thorny factual case that we haven’t really seen before, and it will be interesting to see how it turns out.
UD: Let’s walk through a specific example. On the morning of Feb. 3, the newly-appointed U.S. Attorney General for D.C. tagged Musk on X and posted a letter assuring Musk that the AG’s office would pursue legal action against anyone impeding the work of the U.S. DOGE Service.
Roughly three hours later, Musk replied to an anonymous X account that had posted the names of DOGE employees, which had been publicly reported in a Wired magazine article. Musk replied, “You have committed a crime.” The anonymous X account is now banned. Is this a possible violation of the X user’s free speech rights?
AC: Just to be totally clear: In no way, shape, or form is it remotely illegal to name government employees. It is, in fact, our right to know who is doing work on our behalf vis-a-vis the government. Elon Musk is just flat-out wrong that revealing the identities of people who are gaining access to government systems and shutting down an entire agency — it could not be further from the truth that that is remotely criminal.
There may have been some people who started posting threatening things. I didn’t see anything that would cross the line into a threat that could be punished by law, but I’m sure they exist because it’s social media and people are crazy. But simply naming the employees is protected speech, hands down.
I think there are at least First Amendment questions posed by his suspension of that account. It might come down to whether or not [Musk] was at that moment, in that action, claiming to speak for the State, and having authority to speak for the State. There’s an argument that he was. There’s also an argument that he was doing that as the proprietor of a social media platform. It’s unclear how exactly we will be able to untangle those two things.
UD: After that X incident, FIRE joined a letter to the U.S. Attorney General for the District of Columbia. The letter was also signed by the Association of Health Care Journalists. What do you think is at stake for health care journalists specifically, and journalists broadly?
AC: It’s a sad day, first of all, when one has to remind a sitting United States attorney that the First Amendment is a thing, and he needs to respect it. In general, we are perhaps in a perilous moment for journalism. You see President Trump filing lawsuits, extracting settlements from people who don’t want to be in a fight with the president of the United States, and Brendan Carr at the FCC going after, most recently, a radio station for broadcasting the location of ICE agents, claiming, ridiculously, that that violates their obligation to broadcast in the public interest.
UD: I reported last year on the Murthy v. Missouri case, in which the plaintiffs sued former President Joe Biden’s administration for violating their free speech rights. The government, the plaintiffs argued, had coerced social media companies to moderate certain content that it had deemed misinformation, including posts about Covid-19 vaccines.
Critics of the government effort dubbed it the Censorship-Industrial Complex. It’s interesting that, as far as I’ve seen, those critics have said nothing about what’s happening on X right now. And I wonder how you think about that.
The silence is deafening. It certainly is.
UD: If I recall correctly, FIRE was also concerned about the government’s pandemic-era efforts to persuade social media companies to remove content, including content that many people might consider anti-vaccine. Can you explain why?
AC: FIRE is deeply concerned about government pressure on private speakers and publishers to refrain from conveying disfavored ideas. The First Amendment exists to take the role of deciding what views and ideas are acceptable out of the government’s hands. Government efforts to persuade social media platforms to remove certain views and ideas are more often than not backdoor censorship attempts that rely on the coercive power of the State to force publishers to remove content that the government couldn’t itself prohibit.
And Covid illustrates why we should be deeply skeptical of such activity: Some of what was considered mis/disinformation was later shown to actually be true. The marketplace of ideas works by subjecting ideas to testing and debate, not by government edicts establishing orthodoxy and “truth.”
UD: Teams of federal employees appear to be operating accounts on Bluesky that are critical of President Donald Trump’s administration. See Alt CDC and Alt NIH, for example. What would happen if these employees wanted to use a personal account to post this same content? Can the government fire its employees for criticizing the government if these employees are speaking in a personal capacity?
AC: Citizens do not forfeit their First Amendment rights simply by taking a government job. While the government as an employer has some interest in regulating the speech of its employees made pursuant to their official duties, those employees still have the right to speak as private citizens on matters of public concern. And it is even more important that those who work for the government have the ability to engage in such criticism. They have more knowledge about government activities and often have particularly well-informed positions. Democratic self-governance requires that we be able to hear from those best in a position to speak on matters of government.
UD: One final question I have is about algorithms on X. I’m getting a lot of pro-Trump administration posts in my “For You” feed. Can I be sure that X’s algorithm isn’t prioritizing pro-government content while de-boosting criticism of the Trump administration? And is that a First Amendment issue?
AC: Can you be sure? Absolutely not. It’s a First Amendment issue, but maybe in a different sense. X’s speech is protected. Elon Musk and his company can promote just in the same way a bookseller can recommend books of their choosing. That is the platform’s First Amendment right.
UD: Do you or FIRE have a vision for these platforms going forward?
AC: That is a really big question. We do have a social media report that we put out. It’s on our website that we laid out some recommendations for platforms in terms of fostering a culture of free speech. But at the same time, we will fiercely defend the First Amendment, including platforms’ rights to make those editorial decisions for themselves.
Because if there’s one thing that’s worse than a platform deciding what speech is and isn’t allowed, it’s the government deciding what speech is or isn’t allowed.
