Elon Musk and Tucker Carlson Don’t Understand the First Amendment

Twitter is a private company—not the federal government.

Last night, Matt Taibbi, an independent journalist, wrote a lengthy Twitter thread he called “THE TWITTER FILES.” The thread purported to expose how Twitter made the decision to dramatically suppress discussion of the contents of a hard drive from Hunter Biden’s laptop. But it inadvertently did something else entirely: It exposed the new Twitter owner Elon Musk’s profound misunderstandings about the First Amendment.

Taibbi’s documents provided further evidence demonstrating what Twitter’s critics (including me) have long argued—that the decision to suppress the information was both incoherent and inconsistent. Twitter suppressed the information based on its so-called hacked-materials policy, but the application of that policy was hardly clear in this instance, especially given that the platform had, at the time, just permitted widespread sharing of New York Times stories about Donald Trump’s leaked tax information.

I agree with the attorney and election analyst Jeffrey Blehar about Taibbi’s thread. Writing in National Review after last night’s release, Blehar said the thread contained “few, if any, explosive revelations” for those who’ve followed the story closely. But don’t tell that to Musk. He seemed particularly outraged that one of Taibbi’s tweets described how the “Biden team” asked Twitter to delete a series of tweets, including ones that contained nude pictures of Hunter Biden.

Responding to a document where a Twitter employee indicated that Twitter had “handled” those posts, Musk tweeted, “If this isn’t a violation of the Constitution’s First Amendment, what is?” He followed up moments later with a slightly longer statement: “Twitter acting by itself to suppress free speech is not a 1st amendment violation, but acting under orders from the government to suppress free speech, with no judicial review, is.”

[Read: The far right is getting what it asked for]

Last night, on Fox News, Tucker Carlson also picked up the claim about the First Amendment. With characteristic breathless hyperbole, Carlson declared that the documents “show a systemic violation of the First Amendment, the largest example of that in modern history.”

Musk and Carlson are both profoundly wrong; the documents released so far show no such thing. In October 2020, when the laptop story broke, Joe Biden was not president. The Democratic National Committee (which also asked for Twitter to review tweets) is not an arm of the government. It’s a private political party. Twitter is not an arm of the government; it is a private company.

This matters for a simple but profoundly important reason. The First Amendment regulates government conduct. It does not regulate private actors. The text of the amendment itself says that “Congress shall make no law … abridging the freedom of speech.” That restraint on Congress has since been extended to apply to the U.S. government at all levels—local, state, and federal.

Activists have tried to argue that large social-media companies essentially function as the government, citing a line of cases that treat private parties as government actors when the private parties perform functions that are “traditionally and exclusively governmental.” Examples include running elections, private prisons, and so-called company towns. But, as the Ninth Circuit Court of Appeals recently explained, “hosting speech on a private platform … is hardly ‘an activity that only governmental entities have traditionally performed.’” Social-media companies are not the government.

This means the First Amendment protects Twitter, the Biden campaign team, and the Democratic National Committee. The “TWITTER FILES” released so far do not describe a violation of the First Amendment. Instead, they detail the exercise of First Amendment rights by independent, private actors.

One can certainly agree or disagree with the way in which they exercised those rights. Twitter’s decision to delete pornographic pictures of Hunter Biden was entirely justified and appropriate. Its actions to suppress the New York Post story about Hunter’s laptop were far less defensible. But they were Twitter’s decisions to make, and no amount of misguided rhetoric can transform a Twitter story into a government scandal.

The distinction is crucial. Twitter is but one participant in a marketplace of ideas. Twitter couldn’t truly suppress the Hunter Biden–laptop story. Instead, its censorship launched a national debate that’s still not over. It fueled countless stories across the length and breadth of both mainstream and right-wing media. Arguably, Twitter’s suppression gave the laptop story more attention than it otherwise would have received.

But if the government were involved, the story would change dramatically. As powerful as Twitter is, it cannot match the reach and strength of the federal government, and if the government does coerce a private company into doing its bidding, then the First Amendment is implicated. But finding coercion is key. The government can ask private corporations to take action without implicating the First Amendment. In fact, Taibbi last night said that Twitter “received” and “honored” deletion requests from the Trump White House.

But there’s no evidence of any such coercion (at least so far) in the Hunter Biden story, and unless and until there is, the story of Hunter Biden’s laptop is the story of private individuals making decisions they were entitled to make. It is not the story of a government run amok.