From First Amendment to business pressures: How can Twitter moderate content?

Since Elon Musk took over Twitter in October, the transition has been chaotic, to say the least, with the introduction of more public analytics counts and Blue Check drama. But a recent Twitter exchange between controversial social media personality Andrew Tate and climate activist Greta Thunberg resurfaced the cultural debate about the benefits and detriments of the idea of free speech on social media. Northeastern law professor and GBH News legal analyst Daniel Medwed joined GBH’s Morning Edition hosts Paris Alston and Jeremy Siegel to talk about it. This transcript has been lightly edited.

Jeremy Siegel: So let's start with Twitter in the age of Elon Musk. It feels like forever since it was taken over by him, but really was not that long ago. He made a series of controversial changes to the platform, some of which have prompted people to flee from it. Tell us about the big changes that came.

Daniel Medwed: Sure. Well, I'll take a stab at it. So Musk, of Tesla and SpaceX fame and fortune, bought Twitter in part because he claimed that it was too zealous in moderating content or, in his view, censoring speech. He called Twitter the modern-day equivalent of the town square, and he allegedly wanted all these voices to be heard — except apparently voices critical of his takeover. So he bought the company and he immediately removed many of the governors modulating content, and created a more freewheeling space, I think that's fair to say. For one thing, he reinstated many users who had been banned for propagating hate and/or misinformation, including former President Donald Trump. For another thing, he slashed the workforce considerably from a high of about 7,400 to something like 2,700. And as a sign of these changes, he even relaxed the protocols and safeguards against disseminating misinformation about COVID-19. So a lot of changes in this very short period of time. You're right, Jeremy. I think it's only been about three months.

Paris Alston: My goodness. So what are the rules for governing free speech on a platform like Twitter, Daniel? Because we see it all the time, right? People can say harmful things all they want and then they'll go and say, I'm just using my free speech rights, these should be protected by the First Amendment, not to mention people who say that they may be targeted by hate speech.

Medwed: These are really important questions. A few thoughts on this: So first of all, the Bill of Rights protects all of our liberties from excessive government interference. The Fourth Amendment prohibits the police from unreasonable searches and seizures of our property without probable cause, without a warrant. The Fifth Amendment bans the police from compelling us to self-incriminate in the interrogation room. And the First Amendment protects free speech from undue government encroachment. And the Supreme Court has spent centuries, literally centuries, delineating the boundaries of when the government may regulate speech and when it may not. But here's the kicker: Twitter is not the government. It is not actually the town square. It's just a private platform. And therefore, the First Amendment lacks teeth, and the company largely has autonomy to decide whether it wants to regulate or not regulate speech.

Siegel: So Twitter is a private company. Are there no laws at all governing what sort of conversations can happen on the platform?

Medwed: Well, there are laws. It's just that the First Amendment is largely inapplicable. So, for instance, you could always file a private tort action, claim defamation, if somebody tweets something that is factually inaccurate and harmful to you — to your reputation, or to you in other ways. That defamation action might be hard to win, but you can always file one. The question, though, is really not so much about law and regulation, about whether what Twitter must or must not do. But it's a question of should: Should Twitter, as a matter of corporate social responsibility or as a business matter, regulate speech on the fringe, on the margins? And some advertisers, I think, have responded. The private market has responded by pulling their ad buys, not as many as a lot of people predicted, but some have.

Alston: Well, I mean, that's an interesting way to think about it, right? Sometimes these moral issues come down to the bottom line, and things don't happen on them all the time until that is affected. Let's focus on a specific instance of this, because there was a recent Twitter exchange between social media personality Andrew Tate and climate activist Greta Thunberg that went viral. Give us the backstory here.

Medwed: So here's what happened. It really is a doozy. Notorious misogynist and provocateur Andrew Tate had been banned from Twitter in 2017 for hate speech. But due to the relaxation of protocols by Elon Musk, he was allowed to go back on the site, and he use that opportunity to take a dig at Greta Thunberg, the renowned environmental activist who first rose to prominence when as a 15-year-old, she would camp outside the Swedish parliament to demand action on climate change. Specifically, Tate tweeted at her and said, I have 33 luxury vehicles. They have an enormous collective carbon footprint. Give me your email address so I can supply you with more information. Thunberg responded with a great tweet. In response, she sent a fictitious email address that took a swipe at a certain part of Tate's anatomy, suggesting it was quite small.

Siegel: I saw this. And this has become like, one of the most liked tweets ever. The Twitterverse went bonkers for this. People have called it the greatest tweet of all time. So free speech works both ways, obviously. Were there any legal implications for this exchange?

Medwed: You know, it's interesting, not with respect to the speech per se, but there were some indirect ramifications. So here's what happened next: Tate upped the ante by filing a response to Thunberg. He created a video that he posted where he continued to lambast her, and within 24 hours — he's in Romania — within 24 hours, the Romanian police had arrested him on, get this, suspicion of human trafficking. And then a rumor went viral that basically it was his video that led the police to his doorstep because there was a pizza box from a local chain, Jerry's Pizza, that was depicted in the video. Now, the Romanian police immediately denied this. They said that he was already on their radar screen. But the Twitterverse really went nuts. And some of the tweets were truly amazing.