Below is my column in USA Today on how the Musk purchase of Twitter has forced politicians and pundits to move from corporate censorship to calls for good old-fashioned state censorship. Indeed, Sen. Elizabeth Warren (D., Mass.) has declared Musk’s pledge to restore free speech values on social media as threatening Democracy itself. She has promised that “there are going to be rules” to block such changes. She is not alone. Former President Obama has declared “regulation has to be part of the answer” to disinformation. For her part, Hillary Clinton is looking to Europe to fill the vacuum and called upon her European counterparts to pass a massive censorship law to “bolster global democracy before it’s too late.”
Here is the column:
“A brave new nightmare.” Those words from former Labor Secretary Robert Reich described the threat created by Elon Musk’s bid to restore free speech values by buying Twitter.
Yet, despite warnings that censorship is necessary “for democracy to survive,” neither the Tesla CEO and billionaire nor ordinary citizens appear to be sufficiently terrified of free speech. Twitter confirmed Monday that Musk will acquire the company in a deal worth $44 billion. Once the deal is complete, Twitter will become a privately held company.
Progressives, in the meantime, have adopted a dangerous shift in their strategy of calling for corporations to censor speech.
Last week, former President Barack Obama made this shift clear in his much covered speech at Stanford University. Just days after Musk re-enforced his bid for Twitter with the support of many in the free speech community, Obama warned that social media was “tilting us in the wrong direction.” He called for more censorship of disinformation while calling himself “pretty close to a First Amendment absolutist.”
Obama has never been viewed as an ally on free speech by those of us who have been attacked for our “absolutist” views. Moreover, calling for censorship as a free speech absolutist is like claiming to be a vegetarian while calling for mandatory meat consumption.
Obama favors free speech only if it does not include disinformation, including what he considers to be “lies, conspiracy theories, junk science, quackery, racist tracts and misogynist screeds.”
However, it was notable that Obama called himself “pretty close to a First Amendment absolutist,” not a free speech absolutist. The point became clear later in the speech when Obama noted that the First Amendment does not restrict private businesses from censoring speech. The First Amendment is not the full measure or definition of free speech, which many consider a human right.
For years, the First Amendment distinction has been the focus of liberals who discovered a way to circumvent constitutional bans on censorship by using companies like Twitter and Facebook. Now, that successful strategy could be curtailed as shareholders join figures like Musk in objecting to corporations and media acting like a surrogate state media.
Faced with that prospect, Democrats are falling back to their final line of defense – and finally being honest about their past use of corporate surrogates. They are now calling for outright state censorship. Obama declared: “This is an opportunity, it’s a chance that we should welcome for governments to take on a big important problem and prove that democracy and innovation can coexist.”
He is talking about imposing “standards” on companies to force them to censor “lies” and “disinformation.”
As is often the case, former Secretary of State Hillary Clinton stripped away any niceties or nuance. Clinton called for the European Union to pass the Digital Services Act (DSA), a measure widely denounced by free speech advocates as a massive censorship measure. Clinton warned that governments need to act now because “for too long, tech platforms have amplified disinformation and extremism with no accountability. The EU is poised to do something about it.”
Clinton’s call for censoring disinformation was breathtakingly hypocritical. President Obama was briefed by his CIA Director John Brennan on “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.” The intelligence suggested it was “a means of distracting the public from her use of a private email server.”
Moreover, her call for censorship came just weeks after special counsel John Durham offered more details about the accusation that her campaign manufactured a false Russian collusion theory. One of Clinton’s former lawyers is under indictment for the effort. Clinton personally tweeted out the disinformation that is the subject of the federal prosecution. And the Federal Election Commission recently fined her campaign for hiding the funding of the Steele dossier.
Given that history, it would be easy to dismiss Clinton’s calls as almost comically self-serving. However, the 27-nation EU just did what she demanded. It gave preliminary approval to the act, which would subject companies to censorship standards at the risk of punitive financial or even criminal measures.
If implemented, it might not matter if Musk seeks to restore free speech values at Twitter. Figures like Clinton are now going to the EU to effectively force companies to continue to censor users.
Faced with liability across Europe, the companies could be forced to base their policies on the lowest common denominator for free speech.
Countries like Germany and France have spent decades criminalizing speech and imposing speech controls on their populations. That is why the premise of the DSA is so menacing.
European Commission Executive Vice President Margrethe Vestager was ecstatic in declaring that it is “not a slogan anymore, that what is illegal offline should also be seen and dealt with as illegal online. Now it is a real thing. Democracy’s back.”
Sound familiar? Freedom is tyranny, and democracy demands speech controls.
Under the DSA, “users will be empowered to report illegal content online and online platforms will have to act quickly.” This includes speech that is not only viewed as “disinformation” but also “incitement.”
Academics have increasingly echoed the call for such censorship. Harvard law professor Jack Goldsmith and University of Arizona law professor Andrew Keane Woods have called for Chinese-style censorship of the internet, stating in The Atlantic that “in the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong.”
A glimpse of that future was made clear by Twitter last week, when the company declared that it would ban any ads disagreeing with its view of climate change. Previously, Democratic senators demanded that Twitter expand censorship to include blocking disinformation on climate change as well as an array of other areas.
The push to pass the DSA brings many U.S. politicians full circle but also exposes the true motivation of what is euphemistically called “content moderation.” Democrats turned to corporate allies to impose censorship programs that they could not impose directly under the First Amendment.
Now that Musk’s potential purchase of Twitter could blow apart that unified corporate alliance, they are seeking to use the EU to reimpose censorship obligations. Again, such restrictions would not trigger the First Amendment because they are being imposed by foreign governments.
The result would be a delicious victory for the anti-free speech movement. Musk may buy Twitter only to find himself forced to curtail free speech against the wishes of his customers and his new company.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley