Elon Musk
wants
to “adhere to free speech principles.” That’s easier said than done. Porn, racial slurs and spam are all protected under the First Amendment, but few users want to see them. Even for the narrow categories of speech that aren’t protected, nearly all content blocking on social media goes against the first principle of free-speech jurisprudence—the ban on prior restraint, or censorship without judicial review.
The first step to solving these conundrums is to recognize that different free-speech principles apply in different contexts, and there are three key different kinds of forums. Speech protection is strongest in a “public forum.” If Twitter were such a forum, almost all content blocking would be an impermissible prior restraint. But Twitter isn’t a public forum, most obviously because it isn’t run by the government (even though its censorship is sometimes at official behest). At the other end of the spectrum is private property. If you’re a visitor in someone else’s home, he’s free to kick you out simply for offending him.
Between these poles are “limited public forums”—places generally open to the public where speech can be subjected to reasonable regulation. One kind of restriction, however, is forbidden: viewpoint discrimination. That’s how Mr. Musk should think of Twitter.
Nearly everyone agrees that social-media platforms shouldn’t engage in viewpoint discrimination—including the platforms themselves, which deny they do so. But of course they do. Conservative opinions about transgenderism are censored as “attacks” on a “protected group.” Conservative views on Covid are flagged as “misinformation.” In May 2020, Twitter censored as a “glorification of violence” President Trump’s “when the looting starts, the shooting starts” tweet, while leaving untouched
Ayatollah Ali…