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So What Happens with Twitter Now?

By Steven Ellison, Esq. on April 27, 2022 8:31 AM

Well, he did it. Elon Musk actually did it. Twitter's Board of Directors unanimously approved his purchase of the popular and influential social media platform for roughly $44 billion.

Technically, it's a little premature to say that Musk "owns" Twitter. Shareholders and regulators must still approve the deal. But given the board's unanimous approval of the deal, these hoops may prove little more than technicalities. The deal is likely to close later this year.

The sale raises questions about the future of the Twitterverse. Although we cannot read Musk's mind, we can try to predict the answer to some of the questions here.

What Can Elon Musk Do as the Owner of the Company?

As the owner of the company, Musk will have virtually total control. He will hire officers (to manage the day-to-day affairs of the company) and appoint directors to its board of directors, of course, but he will be able to select people who share his vision.

And get rid of those who don't. Although it's hard to say for sure, Musk could theoretically clean house and move Twitter's headquarters from San Francisco to Texas, the home of his four other companies (Tesla, SpaceX, Neuralink, and The Boring Company). We shall see.

What's Going to Happen to Speech on Twitter?

Musk's concept of free speech seems rooted in the First Amendment. In the press release announcing the transaction, Musk said that "free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated." Pretty strong language. Musk has also characterized himself as a free speech absolutist.

If he truly believes that First Amendment principles should govern discussions on Twitter, Musk may lift most of the speech restrictions currently in place. That would allow speech about virtually everything except:

  • Incitement to imminent lawless action
  • Obscenity (note that obscenity and pornography are not the same)
  • Child pornography
  • Defamation (libel and slander)
  • Crimes involving speech (e.g., perjury, extortion, etc.)
  • True threats
  • Speech that violates intellectual property laws (e.g., copyright, trademark, etc.)
  • Solicitations to commit crimes

What About Misinformation and Disinformation?

The Biden Administration has fought to eliminate "misinformation" and "disinformation" on all social media platforms, including Twitter. Misinformation is false or misleading information. Disinformation is intentionally false or misleading information. The controversy arises over whether something is actually true or false. To some people, something may be disinformation; to others, it may simply be dissent or disagreement.

Legally, it makes no difference. Unless a statement is defamatory, the First Amendment allows both misinformation and disinformation, as strange as that may seem. If Musk lives up to his professed values, we may see, for good or ill, the end of many Twitter speech bans and the reinstatement of many suspended accounts.

If Twitter Permits Misinformation and Disinformation, Can We Sue It if it Hurts Us?

Right now, Twitter cannot be held liable for misinformation and disinformation posted by third parties on its platform. Twitter also has the right to take down pretty much anything it wants to (limited only by its own terms of service). The statute that gives Twitter these rights is section 230 of the Communications Decency Act of 1996.

Until Musk announced his purchase, many conservatives advocated for the revocation of section 230, believing that Big Tech exercises too much control over public discourse. Many liberals opposed this, arguing that it protects the First Amendment to give platforms like Twitter the ability to remove false and misleading content.

With the Twitter deal, the sides seem to have flipped. The Biden administration was specifically asked by reporters what its position was on section 230 now that Musk was buying Twitter. While she declined to comment specifically on the deal, White House press secretary Jen Psaki said the administration has long been concerned about the power of social media platforms and wants Congress to revoke section 230.

We may see at least some changes to the statute this year, given that the Democrats control both Congress and the White House. But as long as Republicans can filibuster legislation in the Senate, section 230 seems unlikely to disappear entirely.

Will President Trump Get his Twitter Account Back?

The question everyone seems to be asking is, "Will President Trump get his Twitter account back?" Musk has yet to speak out on this, but account reinstatement would be consistent with his professed values.

However, since his Twitter ban, Trump started his own social media app, Truth Social. He also expressly said that while he wishes Musk well, he won't be using Twitter anymore. If the former president can be taken at his word, you won't be seeing Trump tweets on Twitter.

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