Elon Musk’s Statist Road to Free Speech

This self-proclaimed free speech absolutist is aggressively deploying government power to kill the 'woke mind virus'

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Elon Musk, the billionaire CEO of Tesla and Space X and owner of the social media platform formerly known as Twitter, styles himself as one of society’s great champions of free speech. He has explicitly framed X, his rebrand of Twitter, as a singular haven for the free flow of ideas. A self-professed “free speech absolutist,” Musk has a rather grandiose view of his role in the battle between free speech and censorship, at one point even suggesting that reforming Twitter from its allegedly left-favoring ways amounted to “a battle for the future of civilization.” As Musk sees it, he is on a crusade against woke censors tirelessly committed to stifling the free exchange of ideas. When asked why he bought Twitter on Joe Rogan’s podcast, Musk revealed that he did so to stop it from being used as an “information technology weapon” intended to spread the speech-restricting “woke mind virus” to the whole world. “In order for the virus to propagate, it must suppress opposing viewpoints,” he said. Musk claims he bought Twitter to stop the spread.

Genuine defense of free expression is a noble, worthwhile endeavor—which makes it all the more unfortunate that Musk, like many self-styled free speech crusaders, is anything but a friend of the right to speak freely. He is arbitrary about the kind of speech he allows on his platform, construing the word “cis” a slur and threatening to ban accounts who use it, and on occasion disallowing negative coverage of Tesla. That might be hypocritical but ultimately his prerogative and not a violation of speech rights. But what’s truly dumbfounding is that while claiming to oppose censorship, Musk has repeatedly attacked the First Amendment rights of those who have said things he doesn’t like. In court and elsewhere, Musk advocates censorship by the state, sometimes putting his effectively unlimited resources into undermining core legal protections for free expression. Musk is hardly alone in pretending to fight censorship while trying to expand it, though he’s the most glaring embodiment today of the inverted relationship between free speech rhetoric and actually living out free speech principles. That makes him a threat to free speech, not its greatest defender.

Defending Free Speech By … Silencing Critics?

Last year, progressive advocacy organization Media Matters reported that, on Musk’s X, major corporate advertisements were running next to overt white supremacist and neo-Nazi content. Given that such content had proliferated on the site since Musk’s takeover, this finding was hardly surprising. Overt bigotry is essentially the only thing more permitted (and encouraged) under Musk’s management than on pre-Musk Twitter. According to a New York Times report that cited findings from various watchdog groups:

Before Elon Musk bought Twitter, slurs against Black Americans showed up on the social media service an average of 1,282 times a day. After the billionaire became Twitter’s owner, they jumped to 3,876 times a day. Slurs against gay men appeared on Twitter 2,506 times a day on average before Mr. Musk took over. Afterward, their use rose to 3,964 times a day. And antisemitic posts referring to Jews or Judaism soared more than 61 percent in the two weeks after Mr. Musk acquired the site.

When a number of companies understandably halted advertising on X due to not wanting their spots to run next to explicitly hateful content—and due, further, to Musk personally boosting posts endorsing the antisemitic Great Replacement conspiracy theory—Musk decided to sue Media Matters.

There was no dispute that the screenshots Media Matters provided were real, not fakes. Musk’s only argument was that they were unrepresentative, which was hardly the point given that major American companies reasonably expect their ads to appear next to posts praising Adolf Hitler exactly zero times. Despite lacking a serious legal claim, Musk promptly threatened a “thermonuclear lawsuit,” later following that up with even more absurd threats against not just Media Matters but anybody who donated to the non-profit. Musk’s legal case against Media Matters actually managed to validate the watchdog’s reporting, since his argument tacitly confirmed that the ads in fact appeared next to the hateful content in question; his only claim was the ads weren’t juxtaposed next to offensive posts as frequently as some believed. Most audaciously of all, Musk characterized his lawsuit as a defense of free speech—all the while he was literally asking the government to punish true, constitutionally protected speech he didn’t like.

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Worse, in a flagrant bit of judge-shopping, Musk filed his lawsuit in the Northern District of Texas—infamous for being the most MAGA-friendly federal court in the nation—despite the fact that neither he nor Media Matters have any real connection to the district. But he wasn’t content to leave it at that. Musk also proudly cheered on the attorneys general of both Texas and Missouri who opened criminal investigations into Media Matters, ostensibly for some kind of fraud. The real purpose, however, was plain: to use state power to punish core First Amendment protected speech.

Recently, a federal court granted a preliminary injunction against the sham criminal investigations. Musk’s civil lawsuit remains pending, its function being to drain its target’s resources through having to defend the case, regardless of the eventual outcome. This kind of lawsuit is so notorious it has a name: a strategic lawsuit against public participation, or SLAPP.

SLAPPed Around

Musk is a profligate user of SLAPPs, targeting critics and deliberately using the legal process as a punitive measure even when his claims are completely frivolous.

In yet another example of Musk going after critics of his management of X, he sued the Center for Countering Digital Hate over its reports documenting the increase of hate speech on the platform. “X Corp.’s motivation in bringing this case is evident,” a federal judge wrote. “X Corp. has brought this case in order to punish CCDH for CCDH publications that criticized X Corp.—and perhaps in order to dissuade others who might wish to engage in such criticism.”

In the CCDH case, the defendants were able to make use of California’s strong anti-SLAPP law, which provides robust procedural remedies and punitive sanctions to protect people from vexatious litigation targeting constitutionally protected speech. But anti-SLAPP laws are not available in all states, and there is a split among the federal circuits about whether they apply in federal court. Passing a federal anti-SLAPP law, as well as more such laws at the state level, has long been a top priority for First Amendment advocates.

Musk’s zealousness for censorship doesn’t end at wanting to silence his own critics. Previously—and again claiming the mantle of free speech defender—Musk offered to pay the expenses of those sued or punished over their tweets. He posted: “If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill. No limit. Please let us know.” The first payout went to an anti-vaccine Canadian doctor, Kulvinder Kaur Gill, to pay her legal fees arising from when she sued people for their speech criticizing her, including tweets she didn’t like. But Musk conveniently overlooks that she used the state to go after her critics in order to depict her as the victim of censorship because, in his view, criticism is apparently censorship. Even under the much more plaintiff-friendly rules of Canadian defamation law, this resulted in a substantial award ordering her to pay for her targets’ legal fees.

Musk has, on occasion, wound up on the correct side of a free speech fight against foreign governments seeking to coerce him, such as when he stood up to Brazil’s Supreme Court justice who tried to arrest election deniers and those who allegedly undermine electoral institutions. But at other times he’s caved to government demands in craven and non-transparent ways, including succumbing to the demand of Indian Prime Minister Narendra Modi to suppress an unflattering BBC documentary about Modi’s role in a Muslim pogrom. Such fights are common for social media giants, which are global platforms with international reach. In fact, pre-Musk Twitter was known for being one of the most aggressive and reliable resisters, through both litigation and outright non-compliance. Musk’s acquisition took one of the tech world’s staunchest and most effective defenders of free speech and made it a weakened pushover.

The Paradox of “Free Speech Culture”

Attorney and First Amendment expert Ken White has identified the contradiction at the heart of our current “free speech” discourse as the distinction between actual free speech, the right to say what you want without legal punishment, and nebulous ideas of a “culture of free speech” that Musk and his ilk insist they are trying to create.

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On the face of it, a culture of free speech sounds like a good idea, and genuinely important. We want a pluralistic, diverse marketplace of ideas. We certainly shouldn’t overreact with severe social sanctions to minor slights or sincere disagreement. But taken to its extreme, this supposed free speech ethos amounts to demands for silencing free speech and free association by suggesting that:

• Criticism of what somebody else said shouldn’t be too harsh;

• People shouldn’t exercise their right to disassociate from someone;

• People shouldn’t suffer social consequences for outright bigotry or breaking other taboos;

• Any speech that discourages others from saying something bad is illicit.

In essence, the “culture of free speech” kneecaps the marketplace of ideas by ensuring that no idea, no matter how beyond the pale, ever loses or is ever outcompeted by nobler ones. It fundamentally undercuts a free society’s ability to marginalize malign actors and ideas and make moral progress.

As White points out, Musk’s idea of a “culture of free speech” is not only distinct from free speech rights, it can often be in tension with it:

Americans don’t have, and have never had, any right to be free of shaming or shunning. The First Amendment protects our right to speak free of government interference. It does not protect us from other people saying mean things in response to our speech. The very notion is completely incoherent. Someone else shaming me is their free speech, and someone else shunning me is their free association, both protected by the First Amendment.

This understanding of a free speech ethos, according to White, has an insurmountable “first speaker problem”: You have the right to say what you want, including outlandishly hateful things, but nobody else better respond in a way that discourages, discredits, or criticizes what you say. Free speech for me but not for thee.

A similar logic is at work in the genuine attacks on free speech rights from the left. Sometimes justified by vague appeals to Karl Popper’s “Paradox of Tolerance,” the basic idea is that hate speech and advocacy of intolerance are inconsistent with a society’s openness to speech, and with its ability to preserve free speech across the board, and therefore must be prohibited. Germany’s postwar laws against Nazi speech and more general hate speech laws today are examples.

At least the “Paradox of Tolerance” concedes it is a paradox, an apparent contradiction between honoring the principles of free speech and ensuring a tolerant society. But instead of doing the intellectual hard work of refuting this premise, the right-coded, anti-woke “free speech culture” argument simply adopts a mirror version of it: Some speech must be silenced to protect free speech. The fight, with its inevitable political biases and tribalism, becomes about whose free speech is bad for free speech?

Any speech intended to persuade or criticize can be framed as an illegitimate attempt to discourage other speech. There is no limit to how far, quickly, and arbitrarily this definition of disallowed speech can go, as Musk’s own careening decisions at ex-Twitter demonstrate. It can make no truly neutral decisions, ones independent of viewpoint discrimination, because it must assign a favored viewpoint that’ll receive the privileges of “first speaker” protection from disagreement.

Under this framework, some speech must be silenced in the name of preserving free speech. In practice, this “culture of free speech” amounts to a blank check to pick and choose who should be silenced under the guise of targeting speech that is supposedly anti-speech or hostile to free expression. If what you’re saying is alleged to be engaging in “cancel culture” or spreading the “woke mind virus,” you must be silenced, by force of the state if necessary.

Stripped of its false rhetoric, Elon Musk’s view of free speech is nothing more than the right to say things Elon Musk agrees with. And if he doesn’t agree, he’ll happily shred the First Amendment to shut you up. He’ll even construe his censorship as a heroic and civilization-saving defense of free speech.

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