Elon Musk has forced policymakers and the tech world to confront some of the most difficult challenges with Twitter and the First Amendment.
TL;DR
Twitter is the worldâs public square, but the rules for what can be said and who can say it have not met the demands of modern speech.
The truth is that social media platforms have overindexed bad behavior as a proxy for deciding when to intervene.
The real time nature of Twitter means our legal frameworks for the First Amendment are ill equipped to protect the truth.
đ§ Vibes:
FALLING BOUGH
One of my favorite paintings is Falling Bough by Walton Ford. Â
It depicts a giant tree branch falling in the sky, overcrowded with thousands of passenger pigeons, all chaotically attacking each other, holding on for dear life, or taking flight. The branch is massive, almost tree-like, but seems to have succumbed to the weight of all of those pigeons.
Ford is a genius.Â
He borrows from the realist aesthetic that you would see in taxonomy illustrations from the Darwin era for cataloging different species of plants and animals, but his paintings take a more sinister tone.Â
It is a type of gloomy but subversive form of environmentalism, presenting a stark warning of how man and beast have interacted over the centuries since settlers first started cataloging the various species that today no longer exist.
I used to think Falling Bough seemed like a straightforward metaphor about civilization. And it is. Ford himself was once quoted as saying he wanted the painting to depict a âdisgusting empire of birds and that it was corrupt like Rome.â
But recently, a more literal interpretation of the painting came to me over the past few weeks.
Falling Bough is about Twitter.
ABOUT DAMN TIME
So much has already been said and written about Twitter in the past couple of weeks, Iâll avoid the nuts and bolts of the possible takeover deal involving Elon Musk. Anything I write about the deal will be outdated the moment I press send.
Instead, I want to talk about the crux of whatâs at stake with Twitter. Â
Iâll warn you: this is just a giant footnote to what I think is the most intelligent thread on the topic. Written by former Reddit CEO Yishan Wong, he provided easily the most insightful thread on understanding Twitter and the problems facing social media platforms today:
I want to hone in on one of Yishanâs tweets in the thread that presents the fundamental problem with speech in the digital age: timing.
His experience at Reddit was that platforms do not censor for topics, but behavior instead. The pattern is that for highly controversial topics, bad behaviorâeven dangerous behaviorâis not far behind.Â
That is when the platforms intervene, and then we as users feel like the topics and people espousing them are banned or canceled.Â
When in reality, the behavior is what the platforms want to quell. Â
But hereâs the thing: really controversial topics that attract bad behavior today may, after a while, become more widely acceptable or lose the attention of the angry online mob. Â
Yishan cites the lab leak theory as an example of this phenomenon where the theory was banned from Twitter because it was attracting bad behavior online, but after a while (and after the idea was more openly discussed by corporate media companies like Vanity Fair) it became permissible to discuss.
Dangerous today, safe tomorrow. Â
And while this might seem ridiculous, arbitrary, and unfair, the reality is that timing has always had a central role in First Amendment precedent. Â
Justice Oliver Windell Holmes originated the doctrine of âclear and present dangerâ to help determine when speech could be limited in a case involving an antiwar protest during WWI. Later on, that doctrine was revised with the âimminent lawless actionâ test from one of the most famous First Amendment cases, Brandenburg v. Ohio, involving a KKK rally in Ohio.
Present. Imminent.  Over 100 years of First Amendment jurisprudence and analysis hinged on the timing element of speech.Â
STAGES OF TRUTH
Hereâs the problem: the concept of timing doesnât work that well in a digital age. Â
Itâs all instantaneous speech. Â
Meaning, unlike a television interview at a KKK rally in Ohio that aired the evening after the rally had already happened, or unlike a newspaper article of an antiwar protest against World War I that people read about a day or even weeks later, we are in 2022 where âthe whenâ is always right now. Â
Thereâs no cooling off period.Â
Itâs as if all of us are at the same terrible KKK rally right now, together. Platforms need to monitor and adjust in real time to protect us from that real time danger. But if all speech is imminent all the time, then all of it is at a higher risk of not being protected by the platforms.
And thatâs a huge problem.
Thereâs a quote I love that, while unconfirmed, is commonly attributed to the philosopher Arthur Schopenhauer, that goes something like this: truth passes three stagesâfirst, itâs mocked; then itâs violently opposed; and finally itâs accepted as self-evident.
What that means is that truth dies a violent death in stage two if the First Amendment is not there to protect it. The truth cannot reach stage three of self-evidence, which is a galaxy brain way of saying: we never actually get the truth.
Back to timing. Â
If all speech is immediate in the digital public town square, and the platforms are policing content based on the likelihood of triggering bad behavior like violence, then we are perpetually stuck in stage twoâs threat of violence with no hope of the truth ever surviving. Â
And if by some miracle the truth gets to stage three, it seems the only path out of digital purgatory is when incumbents like the Vanity Fairâs of the world have blessed it as being acceptable to discuss.
Of course, that path is entirely antithetical to the promise of free speech online. The whole point is getting rid of the gatekeepers.
In any event, instead of the immediacy of speech eliminating timing as a factor for determining what type of speech is protected, the immediacy of speech has instead swallowed up the timing factor such that all speech is a kind of clear and present danger. The snake is choking on its meal.
That is why the label of âdangerousâ speech or demanding a âsafeâ environment on platforms is such a highly effective weapon to combat speech that we donât like.Â
No one has to worry about proving that the content is present or imminent anymore, you just have to check the box that the content is creating some sort of danger.
On a platform like Twitterâwhere so many have joined the network, with so many trolls and anger and vitriolâthe danger exists, well, everywhere.Â
The crowd is simply too big.Â
The network is too large.
The bough is broken.