Racist and sexist speech expresses an opinion, however odious, and banning opinions is the essence of viewpoint discrimination. Every Twitter user knows that countless tweets are hateful but only certain hateful speech is censored, depending on its viewpoint. Ohio (1969), the Supreme Court established that incitement requires proof that the speech was both intended and likely to induce “imminent lawless action.” If the rule is that speech can be banned when it “could” lead to violence in the opinion of Twitter’s employees, the category becomes broad enough to cover nearly any speech, and it will be enforced against speech they disfavor.īans on “hate speech” would have to end. The Constitution also defines “incitement” narrowly. They and their “fact checkers” label content “misinformation” when they deem it merely “unsupported,” “unproven” or “lacking context.” Without proof of falsity, these are no more than differing opinions about the truth-and there is no such thing as a false opinion. Twitter and other platforms don’t follow that principle. But even for clearly unprotected false speech, such as defamation, perjury or false advertising, the law imposes a simple yet crucial requirement in all such cases: The plaintiff or prosecutor has to prove the statement was false. Musk’s first priority.įalse speech isn’t necessarily protected, especially in a limited public forum. This is an especially challenging problem because Twitter and others smuggle viewpoint discrimination into supposedly neutral content-moderation categories-primarily misinformation, incitement and hate speech. Laptop story was suppressed as “misinformation.” Claims that the Democrats stole the presidency in 2020 are censored, while claims that Russia did the same in 2016 go untouched-and of course the truthful Tweets supporting the burning of police precinct houses. Tweets calling for the destruction of Israel and 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 Nearly everyone agrees that social-media platforms shouldn’t engage in viewpoint discrimination-including the platforms themselves, which deny they do so. One kind of restriction, however, is forbidden: viewpoint discrimination.
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If you’re a visitor in someone else’s home, he’s free to kick you out simply for offending him.īetween these poles are “limited public forums”-places generally open to the public where speech can be subjected to reasonable regulation. At the other end of the spectrum is private property.
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). Speech protection is strongest in a “public forum.” If Twitter were such a forum, almost all content blocking would be an impermissible prior restraint. She has turned into a web sensation through web-based entertainment, especially Twitter.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.
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