Why Conservatives Invented a ‘Right to Post’
Early December might have marked the first time anyone ever asserted a First Amendment right to see the president’s son’s penis, an argument that the Framers likely did not anticipate.
In November, the billionaire Elon Musk purchased Twitter, proclaiming himself a “free speech absolutist,” in defiance of a rather extensive record of retaliating against speech he opposes. A month later, Musk, citing five tweets that had been deleted at the Biden campaign’s request in October 2020, asked, “If this isn’t a violation of the Constitution’s First Amendment, what is?”
The tweets in question included explicit pictures and video of President Joe Biden’s son, Hunter—unambiguous violations of the platform’s standards. Nevertheless, the Fox News pundit Tucker Carlson called their deletion a “systemic violation of the First Amendment, the largest example of that in modern history.”
[David French: Elon Musk and Tucker Carlson don’t understand the First Amendment]
There are some problems with this assertion. One is that Twitter is not the government and so is not bound by the First Amendment. Another is that the Biden campaign was not the government and was also not bound by the First Amendment. Still another is that there is no constitutional obligation for private actors to host images of a candidate’s son’s penis, and indeed, rather than a violation of the First Amendment, the choice not to host such images is itself an exercise of free speech.
The catalyst for these novel interpretations of the First Amendment was a Twitter thread by the journalist Matt Taibbi, which included the recently purchased platform’s internal deliberations over whether the Hunter Biden story violated the company’s policy on hosting hacked materials. Taibbi wrote in his newsletter that he was granted access to the files under unspecified “conditions.” The New York Times said it had requested access to the same files, but did not get a response.
Curiously, as the writer Osita Nwanevu notes, among Taibbi’s observations was that requests by the Trump White House for deletions were also “honored.” The Trump White House, of course, actually was the government.
Now, those requests for deletions were not necessarily nefarious. Sources attempt to persuade media outlets not to publish things fairly frequently. Sometimes, those sources are in the government. Unless coercion or threats of retaliation are involved, there’s no violation of the First Amendment. Of course, the Trump White House did openly threaten to punish tech companies over their editorial decisions, to broad support from people who think the Constitution bars Twitter from deleting Hunter Biden’s dick pics.
Reconciling that apparent contradiction requires understanding how freedom of speech has been redefined to confer a right to say only what conservatives want you to say. In this particular case, conservatives are outraged that social-media companies limited the reach of a New York Post story published in 2020, which alleged corruption in Hunter Biden’s commercial deals with foreign firms that implicated then-candidate Joe Biden. Fearing that the revelations were part of a foreign disinformation campaign, some social-media platforms restricted traffic to the story, or in Twitter’s case, banned sharing of the link altogether, something then-CEO Jack Dorsey later acknowledged was a mistake.
Those decisions didn’t stop other media outlets from discussing or investigating the allegations. It did not even prevent people from tweeting their opposition to the decision, which was not confined to conservatives. Observers from across the political spectrum raised concerns, rather than suppress the story, the actions of social-media platforms “launched a national debate that’s still not over.”
