Twitter Faces the “Nightmare” of Being Forced into Free Speech

Twitter LogoBelow is my column in the Hill on the bid of Elon Musk to buy Twitter and its implications for free speech. The increasingly alarmist arguments of the left have continued to mount. On MSNBC, Democratic strategist Danielle Moodie declared “I’m going to be honest, Elon Musk is a danger to Twitter and to freedom of speech.” In other words, more free speech is the death of free speech. She is not alone in such Orwellian takes on the Musk bid for Twitter.

Here is the column:

Twitter’s board of directors gathered this week to sign what sounds like a suicide pact. It unanimously voted to swallow a “poison pill” to tank the value of the social media giant’s shares rather than allow billionaire Elon Musk to buy the company.

The move is one way to fend off hostile takeovers, but what is different in this case is the added source of the hostility: Twitter and many liberals are apoplectic over Musk’s call for free speech protections on the site.

Company boards have a fiduciary duty to do what is best for shareholders, which usually is measured in share values. Twitter has long done the opposite. It has virtually written off many conservatives — and a large portion of its prospective market — with years of arbitrary censorship of dissenting views on everything from gender identity to global warming, election fraud and the pandemic. Most recently, Twitter suspended a group, Libs of Tik Tok, for “hateful conduct.” The conduct? Reposting what liberals have said about themselves.

The company seemingly has written off free speech too. Twitter CEO Parag Agrawal was asked how Twitter would balance its efforts to combat misinformation with wanting to “protect free speech as a core value” and to respect the First Amendment. He responded dismissively that the company is “not to be bound by the First Amendment” and will regulate content as “reflective of things that we believe lead to a healthier public conversation.” Agrawal said the company would “focus less on thinking about free speech” because “speech is easy on the internet. Most people can speak. Where our role is particularly emphasized is who can be heard.”

Not surprisingly, selling censorship is not a big hit with most consumers, particularly from a communications or social media company. The actions of Twitter’s management have led to roller-coastering share values. While Twitter once reached a high of about $73 a share, it is currently around $45. (Musk was offering $54.20 a share, representing a 54 percent premium over the share price the day before he invested in the company.)

Notably, Musk will not trigger the poison pill if he stays below 15 percent ownership of the company. He could push his present stake up to 14.9 percent and then negotiate with other shareholders to take greater control.

Another problem is that Twitter long sought a private buyer under former CEO Jack Dorsey. If Musk increases his bid closer to $60, the board could face liability in putting its interests ahead of the company’s shareholders.

Putting aside the magical share number, Musk is right that the company’s potential has been constrained by its woke management. For social media companies, free speech is not only ethically but economically beneficial — because the censorship model only works if you have an effective monopoly in which customers have no other choice. That is how Henry Ford could tell customers, back when he controlled car-making, that they could have any color of Model T “as long as it’s black.”

Of course, the Model T’s color was not a critical part of the product. On the other hand, Twitter is a communications company selling censorship — and opposing free speech as a social media company is a little like Ford opposing cars.

The public could be moving beyond Twitter’s Model T philosophy, however, with many people looking for access to an open, free forum for discussions.

Censorship — or “content modification,” as used in polite company — is not value maximizing for Twitter, but it is status enhancing for executives such as Agrawal. It does not matter that consumers of his product want less censorship; the company has become captive to its executives’ agendas.

Twitter is not alone in pursuing such self-defeating values. Many in the mainstream media and many on the left have become some of the loudest advocates for corporate censorship. The Washington Post’s Max Boot, for example, declared, “For democracy to survive, we need more content moderation, not less.” MSNBC’s Katy Tur warned that reintroducing free speech values on Twitter could produce “massive, life- and globe-altering consequences for just letting people run wild on the thing.”

Columnist and former Clinton Labor Secretary Robert Reich went full Orwellian in explaining why freedom is tyranny. Reich dismissed calls for free speech and warned that censorship is “necessary to protect American democracy.” He then delivered a line that would make Big Brother blush: “That’s Musk’s dream. And Trump’s. And Putin’s. And the dream of every dictator, strongman, demagogue and modern-day robber baron on Earth. For the rest of us, it would be a brave new nightmare.”

The problem comes when you sell fear for too long and at too high a price. Recently, Rep. Madeleine Dean (D-Pa.) agreed with MSNBC analyst John Heilemann that Democrats have to “scare the crap out of [voters] and get them to come out.”

That line is not selling any better for the media than it is for social media, however. Trust in the media is at a record low, with only 7 percent expressing great trust in what is being reported. The United States ranks last in media trust among 46 nations.

Just as the public does not want social media companies to control their views, it does not want the media to shape its news. In one recent poll, “76.3% of respondents from all political affiliations said that ‘the primary focus of the mainstream media’s coverage of current events is to advance their own opinions or political agendas.’”

Thus, an outbreak of free speech could have dire consequences for many in the political-corporate-media triumvirate. For them, the greatest danger is that Musk could be right and Twitter would become a more popular, more profitable company selling a free speech product.

Poison pill maneuvers are often used to force a potential buyer to negotiate with the board. However, Twitter’s directors (who include Agrawal and Dorsey) have previously limited their product to advance their own political preferences. This time, federal law may force them to fulfill their fiduciary duties, even at the cost of supporting free speech. The problem for the board will occur when the “nightmare” of free speech comes in at $60 a share.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

113 thoughts on “Twitter Faces the “Nightmare” of Being Forced into Free Speech”

  1. Word one is “Anonymous”….immediately computer command to scroll down to the next post….zero time wasted on reading past Word One.

    Lots of time could be saved were there a simple “Block” function.

  2. Here’s a novel idea: make it so that a condition of running a business in the United States of America is that the business must respect
    the constitutional rights of the citizens. If they can’t do this, then they lose their right to make a buck. Why should a company have economic freedom if it will not respect expressive freedom?

    1. Companies have their own 1st Amendment rights. Good luck coming up with the legislation you want and having it pass constitutional muster.

    2. “[M]ake it so that a condition of running a business in the United States of America is that the business must respect the constitutional rights of the citizens.”

      1A protects an individual’s right to peaceably assemble. So by your reasoning, you and your compatriots have a “right’ to assemble at a Starbucks or McDonald’s? So for businesses, just wipe out or ignore the laws against trespassing?

      There is no such thing as a “right” to violate the rights of others.

      1. business must respect the constitutional rights of the citizens.”

        You have lost track of the genius of the BoR, or not really considered their structure.
        The bill of rights doesn’t really ‘protect’ peoples rights. The BoR regulates govt. By often barring govt action, or requiring high hurdles be met to carry out govt actions. Those are the “negative rights” Obama whinned about. The constitution forced “negative rights” on what he considered the immutable power of GOVERNMENT!

      2. Interesting you raise the right to assemble – as in at the capital, on J6.

        Why was the capital locked ? To my knowledge it has never been closed during sessions before.

    3. Doing business is a right.

      Rights can be conditioned on very little – primarily not using force against others.

      The fundimental problem with Twitter is that they are protected from liability for defamation – that makes them a public forum.

      Most but not all the arguments in defense of Social media censorship are LEGALLY valid.

      That does not change the fact that it is a BAD idea.

      One of the things Musk is doing is pointing out that it has consequences.

      Musk is BETTING that Twitters censorship has had a negative impact on its business.

      He has openly stated that with better management – particularly of free speech he beleive twitter would have more users, more advertising and more value.

      In a weird way the mad sheik is essentially confirming that.

      There is no doubt twitter could be worth more than musk is offering.

      Musk is saying that Twitters bad speech policies have negatively effected its value.

  3. The interesting issue with Twitter is the fact that you can’t communicate with government agencies or government persons (from Congresspersons to POTUS to FBI Director Wray) other than email, snail mail or…Twitter. You can’t be on Parlor and do that. Only Twitter. So censoring, much less suspending, a Twitter user is an excellent example of the private sector edging into 1st Amendment territory. See Pruneyard & progeny.

    1. You can also communicate with government agencies and your members of Congress, etc., in person and by phone.

  4. Twitter & Board of Directors are for Censorship, they proved this. The DEMS/Main Street Media, Left Wing Socialist/Radicals & etc are all for Censorship and they are against and AFFRAID of MUSK and FREE SPEACH. The Board needs to be taken to Court and be held accountable and be forced to entertain all offers, Musk or higher offers, where are offers are independently reviewed and the best offer voted on by share holders. The MGMT and Board of Twitter own very little Twitter stock. Elon Musk and now Vanguard control about 20% of the stock.

    Twitter needs a complete housecleaning of MGMT, Staff, Board, so called Censors? The Censors should be the first to go? Then rewrite the Algo’s software for FREE SPEACH.

  5. All the denials of political censorship are gone. That is one healthy aspect of this progressive stupidity. Daylight will not be kind.

    1. I agree. It’s a good point. I’m less optimistic that we can get them to stop saying any view other than theirs will “end democracy”. I think they do that because they know free speech will “end Democrats”.

      1. For sure. End democracy simply means their thinking on what democracy should like like would be threatened.

  6. Prof. Turley, perhaps you could write an article about the recourse available to twitter stockholders. I would love to see a list of attorneys specializing in dealing with boards that abandon their fiduciary duty.

    1. Excellent — and let’s not forget that a substantial portion of Twitter Corporation’s stockholders are Institutional Investors, including Mutual Funds, State Pension/Retirement Plans, Insurance Companies, Banks/Trust Companies, and Foreign Sovereign Funds. To the extent those institutional investors support Dorsey’s chosen replacement, this fellow named Agrawal whose views on the first amendment in the US Constitution are now very clear, those institutions are ‘complicit.’ So yes, the shareholders most definitely have the right to sue the Board of Directors, and shareholders Vote for the Board (or vote them out!).

  7. so when Hillary hired a British spy and other foreigners to work with the DOJ, CIA, FBI and Democrats in Congress to overthrow Trump’s Election…that was Healthy?

  8. Twitter Agrawal “healthy conversations” are defund the police, pro-BLM Riots, pro black terrorism, allowing parents to FORCE sex changes on children, cover up Democrat conspiracies and crimes, etc

  9. Freedom is slavery. War is peace. Riots doing $billions in damage are mostly peaceful. Censorship is free speech.

    This is the intellectual heft of the experts running our schools exhibit. And why graduation rates are declining and less than half of all students are reading at grade level. This is the goal. The uneducated are easily manipulated.

  10. On MSNBC, Democratic strategist Danielle Moodie declared….

    MSNBC? MSNBC is the funniest joke in the world, deadly even

  11. Trump, Giuliani, and others in the Trump Campaign for re-election in November, 2020, felt certain that at least one Court, maybe even a few Courts, would rule that their election ‘fraud’ accusations were plausible and had enough merit not to rule against the fraud claims.
    In hindsight, it looks like Biden got elected in large part because of Jack Dorsey’s banning the New York Post newspaper’s disclosures regarding Hunter Biden and his Laptop and its contents. People have said Dorsey deserves some credit for admitting, way after the fact, that banning the Post, and everyone who would try to promote the Laptop story, was in Dorsey’s words — ‘a mistake.’
    Right Jack – a mistake.
    With Musk in control of Twitter, such a ‘mistake’ would likely never have occurred.

    The ‘fraud’ in the 2020 election was Dorsey’s ‘mistake.’

    1. Twitter, Google, Apple, Facebook…will do what ever it takes to KEEP Democrats and Wall STreet in POWER

    2. So much was wrong with the 2020 election and any one of many things would have resulted in a different result – possibly a RADICALLY different result.

      There are many impressive things about Gulliani – but his handling of the election challenges was abysmal – there are several stories covering that. Giuliani was fairly well marinated for the last half of 2020 and not up to the task.

      I am extremely disappointed in Sydney Powell – Fixating on the dominion claim was incredibly dangerous.

      While there is fairly significant evidence of serious problems with the election equipment that have been documenting in NH, and WI and GA,
      those have inevitably proven to be innocent error or incompetence rather than malfeasance.
      The error rate on the equipment was high enough in many areas the votes should have just been counted by hand.

      In NH they found a real serious problem that could tip elections and could be a nationwide problem.
      But it only effected mailin ballots and only those races at the folds. But unlike the vast majority of error in elections – the NH problem would ALWAYS favor one candidate. But NH found no problem with the presidential election.

      But in the end the fundimental problem with election fraud claims occured BEFORE the election.

      The courts needed to intervene and prohibt the lawlessness BEFORE it occured. By failing to do so once the election took place they were complicit and they were as we saw nearly universally going to protect the status quo.

      This is also relevant to how to fix things. To the greatest extent possible we want to see remedies for election problems that are automatic.

      GA and LA as an example have runoffs for close elections – rather than tying up the courts and subjecting them to claims of corruption.

  12. The Prof makes an important distinction between Private Company, and a Private, publicly held company. I can do what I want with my company, But once I take it public, The SEC has a say in desicions. Now the company is responsible to the share holders to make sound balance sheet decisions.
    A good example would be Musk. If he had gone public, it is doubtful the SEC would allow the company to take over twitter, because it is injurious to the Musk balance sheet.

    This has further exposed the Biden administration as corrupt and the SEC and DoJ have launch investigations into Musk, to run a mob shakedown operaiton. “Nice Company you got there Mr Musk, shame if the govt tied you up in litigation for the next decade”

    1. yawn….Twitter is a COMMUNICATION COMPANY! If a Republican owns a phone company…can he drop calls from Democrats?

      1. If a Republican owns a phone company…can he drop calls from Democrats?

        One of the cell carriers, was preventing their superscribes from linking of certain, web sites. Gate Way Pundit was one of those. You could not copy a link leading to
        Gateway Pundit, the carrier would send the message, but not the link.

      2. Poor analogy. A traditional phone company merely provides the means for one person to speak with another. The social platforms are just that–platforms. It is the modern equivalent of the soapbox in the market square. Democrats are comfortable seeing people pulled off the soapbox…they even yawn about it. Unless and until they’re the ones being pulled off, or merely being challenged on their ridiculous views.

        1. Which brings us to the real roots of the problem. Twitter and other social platforms should be free to regulate their content, however, the government should have made the ISPs public utilities. Then they could be forced to carry ALL platforms. This way the big tech cabal wouldn’t be able to force competing platforms off the net. When conservative social media platforms are allowed to compete freely, Twitter, Facebook and their ilk would change policies when they began losing almost half their users and the advertising bucks they bring.

          1. I fully recognize the problems with Big Tech today.

            But I do not want MORE government regulation.

            It should be readily apparent to conservatives that government is openly hostile to them.
            The federal government is openly hostile to conservatives even when conservatives control it.

            While Trump was president much of the federal government was act working to sabotage him and get rid of him.

            Do you want these people – rather than those at twitter controlling censorship ?

            Do you want our current courts controlling censorship ?

            While the problem is bigger than the problems with Section 230, all that government needs to do is repeal S230 protections – either enitrely – which would be best, or for content providers that censor content.

            I do not beleive this will fix the problem. But then the fix is not regulatory.

            Conservatives need to own their own free market principles,

            Fix this using market forces.

            Hit big tech in the wallet – built alternate social media, reduce dependence on those that censor.

            Government is not the answer.
            It is not the answer when left wing nut democrat quasi socialists leverage it for their purposes
            It is not when democrats try to do the same.

            I support FL getting rid of Disney’s special status.

            But because neither Disney nor anyone else should EVER have “special status”.

            Disney is free to weigh in stupidly over political issues – and parents are free to decide whether to patronize Disney.

            Regardless, Businesses like Disney, Like Twitter, like …. are going to need to learn the hard way – the politics of their employees must take a back seat to satisfying ALL their customers – not just the woke customers.

            But if the “woke” wish to balkanize all business in the US – then that is what we must do.

    2. And for at least this reason, this corrupt practices of the Biden DOJ and the SEC, and other agencies of the Biden Administration, your vote in November, 2022 will make a huge difference in your ability to speak freely in this country.

  13. The most blatant media reaction so far has been Mika Brzezinski saying “that’s our job” to “control exactly what people think.” The mask slips!

    1. Although apropos to the current situation, she said that in 2017, not about the current Twitter-Musk brouhaha.

  14. Lefties are on to something.

    Tell a lie often enough and some people will believe it.

    Look at Anonymous (the one who spends hours everyday on this blog); he/it (not sure of the correct pronoun) thinks that he can bludgeon us into believing his line.

    He certainly has Natasha as an acolyte, but not many others.

    The downside is that we recognize him as a twit and quit listening.

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