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ALAN DERSHOWITZ: Elon Musk Is The Last Best Hope For Free Speech

Photo: JD Lasica from Pleasanton, CA, via Wikimedia Commons

By Alan M. Dershowitz, via Daily Caller News Foundation | October 6, 2023

Alan Dershowitz: Let me start with a statement that many will disagree with. No country in history has ever really tested free speech: has seen whether the marketplace of ideas works or whether we can really have a society without censorship; where every idea is tested only on its merits, rather than for political benefit. This cannot be a right-left issue. Elon, you may be the first person who has really tried. Thomas Jefferson, Alexander Hamilton and Abraham Lincoln all compromised. You are trying, for the first time, a great experiment to see whether we can survive with a marketplace of ideas, without censorship, where all thoughts and all ideas are treated equally. For instance, where there are judgments on the basis of whether something is pro-right, pro-life, anti-Jewish, pro-Christian, anti-Christian. What we need is to create a circle in which things that are illegal, such as abusing children, are outside the circle, but anything else has to be insidethe circle. So if something is permitted for one idea or “-ism,” it has to be permitted for the others. This is exactly what universities are failing to do. They are creating a line on which favored groups fall on one side and disfavored groups fall on the other side.

Can one define the kind of speech that must be permitted — the legal kind — without focusing on the content of the speech itself? Can one do that without focusing on whether it is right or left or politically correct or anything of that kind? One has to create a framework that is absolutely neutral. Then maybe fewer people will want to censor because they will realize that they will not be able to have “free speech for me but not for thee.” People will always want to censor but not be censored.

No idea should be censored. Oliver Wendell Holmes put it well. He said every idea is an incitement. There should be no lines between advocacy and incitement. We fail every time we have tried to do that — most recently, with former President Trump’s ill-advised, but in my view, but constitutionally protected “January 6 speech”. We also failed during McCarthyism as well as in trying to distinguish between lawful advocacy of revolution and unlawful incitement of violence.

Do not listen to special pleaders on behalf of minorities. Do not listen to the people who are self-serving and want, say, to serve the Jewish community, or serve Israel or the Palestinians. I am in favor of no prior censorship except things that are overtly illegal. Let the marketplace decide and make sure that there is an opportunity for everyone to answer. One cannot draw a line on hate speech. One person’s hate speech is another person’s love speech. It is important to open up the marketplace of ideas. If everyone is allowed to express ideas openly, no one is going to censor the “enemy” when they know that next, he or she will be the one being censored.

Elon Musk: We are experimenting with this idea of freedom of speech, but not reach. Meaning that you can post anything on the platform even if it is hateful, provided that it is lawful. But then there is a separate question of what is promoted or not promoted, what enters into our recommendation engine, and if so, with what promise? Our current approach is to say, okay, you can say things that are hateful but legal on the platform, but we are not going to recommendthem to others. This is the current approach that we have.

Alan Dershowitz: That can be abused and become a form of censorship too.

Elon Musk: I agree. Advertisers, certainly, have a right to say what content they will appear next to because that’s their right too, but not to dictate what can be said on the platform.

Alan Dershowitz: I would agree with that. There is one other danger: of “X” being perceived as a right-wing reaction to left-wing censorship. I am — and identify — more with the left than the right, but I oppose strongly efforts by both the left and the right to censor. It would be a very serious mistake if “X” or you were perceived as some way implicitly favoring the right over the left. Perhaps you might have a small group of advisors, who represent different perspectives. Today the greatest danger to free speech comes from the left.

Elon Musk: Yes, agree.

Alan Dershowitz: Violence comes from both sides. The right-wing attack abortion clinics and kill Jews in synagogues. The 2020 “summer of love” came from the left: they burned down parts of cities, tore down statues, vandalized buildings; according to reports, numerous Americans were killed, including retired police Captain Daniel Dorn; thousands of police officers were assaulted, many sustaining injuries.

At the moment, it is the left that is educating our future leaders, so the left poses a far greater danger of censoring free speech and of skewing the marketplace of ideas. “X” has to be perceived as equally open to both sides.

Elon Musk: That is our aspiration, that is our goal. Now the reality of it for anyone who is paying attention — and I’m sure you saw this — was that prior to the acquisition, Twitter was very left and getting even more left. They had a massive thumb on the scale on elections. Frankly, worldwide on the side of left, and would suppress Republican voices at a rate, sometimes perhaps an order of magnitude greater than Democrats. There was a tremendous amount of bias. Now we are moving from a system where there was a massive electoring bias to a system that is now more inclusive, where at least, say, 80% of America — perhaps the world — could be on the platform and feel that it is finally a level playing field, fair to people with a wide range of views. That is our goal and that is what we are doing now.

Given that it started so far off the left, it is accurate to say that it is moving right because it is moving to the center. So technically it is true that it is moving right. Not that it is suddenly popped over and instantaneously became, you know, from a left-wing propaganda arm to a right-wing propaganda arm but necessarily if it was pretty damn far on the left, it is going to have to move to the right in order to get to the center, and that is that is our goal.

As Einstein would say, all motion is relative. If you start on the left and you move to the center, you are necessarily moving right. Our goal is not to move to the right; it is that we are moving right in order to get to the center.

Alan Dershowitz: But some people perceive this as a movement to right. You might want to make it absolutely clear that you are the only platform in the world that does not take a “left -right” position — that yours is the platform that is pro-free speech, and that you are the first person in history ever to try to create a true marketplace of ideas. John Stuart Mill advocated it, Jefferson advocated it. But nobody ever achieved it. You are in a position where you can achieve it. I am just concerned that your historic neutrality might be destroyed if “X” is not perceived as being from the center. So everything you do needs to be designed to create a neutral space — a marketplace of ideas where the only answer to false speech is true speech, and where the marketplace determines how many people listen to it.

We have to have more confidence in our ability to answer bad speech. I do not want to censor my enemies.

Elon Musk: Absolutely, and to be clear we actually have massively broadened what can be said on the platform. But we have — and perhaps you disagree with this — but we have tried to guide our or algorithm to promote things that are positive more than things that are negative; frankly, to have a love bias, if you will. This is not in terms of what can be said, but in terms of what is promoted to others. If somebody wants to accuse me of saying it is wrong to have a slight bias towards love and positivity, then I am rightly accused of that.

I think our overlap in agreement is very high so I would certainly value your opinion in the future because this is something that we should debate frequently. As I have said, I think the overarching goal is how do how do we make this platform serve as a positive force for humanity. I think the free exchange of ideas does result in a positive force for humanity — if somebody feels that even if their ideas are wrong, they are not being squashed or censored. I think being squashed and censored breeds hatred and resentment and simply sends people to “hate echo chambers” that are outside of the mainstream. I think where you get the sort of people who go kill and do mass shooting, is because they are in some sort of “hate echo chamber.”

Alan Dershowitz: I think we all should sacrifice our own parochial interests, even on issues like anti-Semitism, to a far greater humanitarian interest in promoting open and complete dialogue. Complete free speech in the marketplace of ideas: only you can do that.

Elon Musk: Well, thank you. I’ll do my best here and your sort of advice would certainly be very much appreciated. I believe one is always wrong to some degree; we simply aspire to be a little less wrong over time and eventually we can get to a really good place. The idea is how do we make “X” a positive force for humanity where we can increase the sum of human knowledge. It’s a place where I hope people would know that if their ideas are based on false premises, especially hateful ideas, that perhaps we can point out that the reason that they have this hatred is because of things that are not true. It is like actually you are hating this or that group for things that are not true, or perhaps, in some cases, things that happened a long time ago for which it was a great-great-grandfather or something, that did the bad thing.

I think there is a lot of wisdom in forgiveness and turning the other cheek. When I was younger, I actually thought turning the other cheek was not a sign of weakness. Now, I think it is actually a sign of strength. By the same token if you turn the other cheek and you’re just getting slapped all day, at a certain point you stop turning the cheek, but the general notion of forgiveness is incredibly important. Do not hold some grudge for you know a long time, in some cases centuries. Let it go and, to take another take a quote from the New Testament, the truth shall set you free, as John said. I am a big believer in that the road to morality is truth and curiosity. And if you care about truth and you are curious, I think this is a natural outflowing from that.

Note: The conversation above has been lightly edited for clarity.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast. This piece is republished from the Alan Dershowitz Newsletter.

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