Lhe acquisition of Twitter by Elon Musk has sparked a lot of commentary and speculation about the future of the social network. This acquisition is indeed the latest episode in a controversy that divides the United States, between contradictory and sometimes confused readings of the first amendment of the Constitution of the country about the tolerable limits to freedom of expression online.
Proponents of a rigorous conception of free speech [la liberté de parole] advocate a return to a literal interpretation of the First Amendment that strictly limits the government’s ability to restrict people’s free speech. Only a principle of state neutrality would guarantee individual freedom against the abuse of arbitrary power. This logic is echoed by Elon Musk, who wants Twitter to comply with the First Amendment in terms of content moderation.
However, the Constitution only applies to public authorities (ie the federal government, the States) and does not bind private persons (ie companies, individuals). In other words, nothing legally requires Twitter to guarantee the freedom of expression of its users, nor to filter political content according to a principle of neutrality.
A system of civil irresponsibility
Content moderation has been at the discretion of companies since 1996 and the passage of “Section 230” of the Communications Decency Act [la décence dans les communications]. Under this law, online service providers are encouraged to filter, on their own initiative, publications in order to preserve a form of morality on the Internet.
But the law goes further, since it provides for a regime of civil, and de facto criminal, immunity for the benefit of operators – regardless of whether they retain or delete content, even the most outrageous. This particularly protective legal framework has enabled companies such as Twitter, Meta or YouTube to restrict the freedom of expression of their customers beyond what is provided for in the Constitution in order, in particular, to block the dissemination of obscene content and hate speech. .
This approach was that of the management team of Twitter before the thunderous arrival of Musk, who, judging that this legal policy had the secret objective of silencing conservatives, intended to cut it short. The billionaire interprets the discretionary power offered by section 230 as authorizing him to implement content moderation in accordance with the letter of the Constitution. Thus, all legal expressions, even the most unbearable, could flourish without constraint.
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