Twitter’s Legal Team Has Been An Aggressive Defender Of Free Speech; Will That Continue Under Musk?

Free Speech

from the actual-free-speech dept

For all the talk of how Elon Musk wanted to buy Twitter to make it more supportive of free speech, there remain a ton of questions about what it will actually mean in practice. I’ve explained why his conception of free speech is incredibly naïve and his ideas around content moderation are not just outdated but counterproductive. Unfortunately, when most people talk about Twitter and “free speech” it’s the content moderation aspects that they’re referring to.

But, back here in reality, Twitter’s actual role in supporting free speech and the 1st Amendment often plays out quite differently: in court. Twitter’s legal team has been one of the most aggressive (if not the single most aggressive) companies in defending the privacy and free speech rights of its users. From early on, when various entities both private and public have sought to unmask anonymous Twitter users, the company has gone out of its way to defend the right to anonymity and to push back on questionable subpoenas that seek to unmask people over 1st Amendment protected speech.

The company also spent years fighting for its own 1st Amendment rights to reveal when governments demand information from companies, something it chose to do alone, after all the other big internet companies reached a settlement with the DOJ over what they would reveal regarding government demands for information.

Those are just the tip of the iceberg of the legal efforts that Twitter has been involved in to protect actual free speech/1st Amendment concerns. The company has always been extremely proactive in defending what the 1st Amendment actually protects.

Will the legal team continue to do so under Musk? One hopes so, but it now becomes much more of an open question. Given Musk’s statements to date about free speech, he seems more focused on the content moderation side of things than the actual 1st Amendment issues at play. Indeed, one of the changes that Musk has pushed for, to “authenticate all real humans”, works directly against this history.

Even if the plan is not to force a “real names” policy on Twitter users, but rather just for Twitter to know the real identity of all its users, that still creates massive risks — especially for people who are already at risk or marginalized. We’ve seen over and over again how thin-skinned rich and powerful users have sought to subpoena Twitter to seek out and identify online critics. Beyond going to court to defend the privacy and 1st Amendment anonymity rights of these users, Twitter also could (in the past) more credibly note that it doesn’t have certain information about many of those users, and might not have their real names.

But if Musk moves forward with “authenticating all real humans” not only will it now carry much more of that information, but it will make it a much bigger target for people who are seeking to unmask critics on Twitter — including foreign state actors. And that’s not even touching on how it will also make this “authentication” database a hacking target. It’s much easier to protect information you don’t have, yet Musk now appears to want that information.

And, frankly, Musk’s own history regarding such things is not encouraging. It wasn’t that long ago that Elon Musk was accused of trying to destroy a Tesla whistleblower and doing some fairly questionable things in the process:

The security manager at the Gigafactory, an ex-military guy with a high-and-tight haircut named Sean Gouthro, has filed a whistleblower report with the SEC. Gouthro says Tesla’s security operation behaved unethically in its zeal to nail the leaker. Investigators, he claims, hacked into Tripp’s phone, had him followed, and misled police about the surveillance. Gouthro says that Tripp didn’t sabotage Tesla or hack anything and that Musk knew this and sought to damage his reputation by spreading misinformation.

The story gets pretty crazy from there. After Tripp was interrogated and then fired, all sorts of data was leaked about him in the press. Tripp emailed Musk directly to complain, and Musk told him “threatening me only makes it worse for you.” And then an “anonymous threat” supposedly came in that Tripp might shoot up the Tesla gigafactory, leading to law enforcement hunting down Tripp — effectively SWATing him as a potential shooter.

After Gouthro had called the sheriff, he made a second call—to the private investigators he says Tesla kept on retainer, asking them to find Tripp. The PIs found Tripp before the police did, tracking him to the Nugget casino in Reno. Gouthro says his boss told him not to tell the cops that Tesla had Tripp followed.

Meanwhile, Musk emailed a reporter at the Guardian: “I was just told that we received a call at the Gigafactory that he was going to come back and shoot people,” Musk wrote. “I hope you all are safe,” the reporter replied.

A sheriff’s deputy, Tony Dosen, met Tripp on the street outside the casino. Body cam footage shows Tripp shaking and crying as he walked up to the police. He said he didn’t have a gun. Then he sat down on a park bench and started telling the police what had been going on since he’d clumsily attempted to blow the whistle on one of the world’s richest and most famous men.

There are some other similar stories that raise questions about Musk’s actual commitment to free speech as well. It’s not in the US, but Tesla has filed defamation claims against Chinese citizens who raised concerns about its cars. Musk also once called the boss of a vocal critic of Tesla, causing that person to shut down their Twitter account. He also has a long history of firing whistleblowers or critics within the company, then trying to silence them. And, as we’ve discussed before, he once banned an investor/journalist from buying a Tesla for merely criticizing the long wait to get a Tesla event started.

It’s difficult to believe that a Musk-led Twitter will do the hard work of standing up to such attempts by others when Musk may have been engaged in those kinds of attacks himself in the past.

Filed Under: 1st amendment, authentication, elon musk, free speech, privacy, subpoenas
Companies: tesla, twitter