No, Elon Musk’s Twitter Policies Are Not At Odds With The First Amendment

Last week, Elon Musk took to Twitter to allege that a “stalker” had blocked the car carrying Musk’s 2-year-old son and climbed onto its hood. His post suggested that an app providing real-time data on private airplane flights facilitated the attack.  

Like any dad, Musk was angered and outraged, but unlike any other dad, Musk could take immediate action. He announced a new Twitter rule that prohibits “doxxing” of individuals’ real-time locations as a public safety violation and temporarily suspended several journalists, including some from The Washington Post and CNN, for violating the policy.

As if coordinated by a dramatic script — enter Outrage downstage center — journalists, tech commentators, and even human rights activists denounced Musk for First Amendment hypocrisy. But it is the journalists’ hypocrisy that truly staggers. Those same reporters who denounce Musk said nothing (and continue to say nothing) about Twitter’s prior management banning Alex Berenson’s reporting of true facts about Covid, its suppression of the New York Post and the Hunter Biden laptop story, or perhaps the greatest First Amendment travesty of our time: collusion between the FBI and Big Tech platforms to control American political debate during the 2020 election. One could fairly respond to all this outrage as Marc Andreessen did: “A warm welcome to all the newest converts to the great American cause of free speech.”

This result does not surprise conservatives who know that corporate media journalists and fellow institutional apparatchiks follow power, not principle. But, what of Musk’s principle? Is he a hypocrite? From a free speech perspective, Musk’s actions are defensible. Platforms have long banned types of content such as nudity, grotesque gore — and speech that puts people in immediate harm. Real-time location doxxing is of a piece. If you’re OK with Facebook eliminating nudity, real-time doxxing likely has equally bad effects. 

Further, laws aimed to end Big Tech censorship would allow Musk’s new rules. For instance, the recently upheld Texas social media law, H.B. 20, only prohibits viewpoint discrimination. The law follows Supreme Court precedent that distinguishes between viewpoint discrimination, which censors on the basis of beliefs or positions on various matters, and discrimination which prohibits categories of speech. To illustrate, the Texas law allows Facebook to ban nudity, but not advocates of naturism. Musk’s rule is viewpoint-neutral, prohibiting a type of speech: real-time doxxing. All may criticize the rule for any reason.

But, what about the First Amendment? If Twitter were the government, would Musk’s rule pass constitutional muster? It might. Given that the government can punish publication of sorts of private data — ranging from intimate photographs under “revenge porn” laws to educational records to medical records and classified documents — a law prohibiting publication of real-time data might be constitutional. Similarly, courts have held that firms are under no obligation to deal with competitors — and thus Elon’s recent, perhaps ill-advised, banning of links to competitor social media companies is constitutionally defensible too. In any case, Elon is not spitting on the First Amendment.

But, the regime journalists’