Some of you have asked why I’m still chasing my lawsuit against Twitter, even after it accepted Elon Musk’s takeover offer.
Fair question. In fact, at the Berenson v. Twitter hearing on April 28, federal Judge William Alsup asked something similar. After all, if Musk is going to let Donald Trump back on, he’ll let me on too, right?
I have two answers, one practical and the other philosophical.
The practical one is that we don’t know whether the deal is going to happen - whether Musk will actually buy Twitter. This point may be the only one on which Twitter’s lawyers and I fully agree.
Musk highlighted the risks two days ago by tweeting (of course) that the deal was “on hold” because Twitter might have more fake accounts than it has admitted. Musk sent the message Friday morning, before the stock market opened, and it put Twitter shares into a tailspin. On a very positive day for stocks, the first in a while, Twitter was down about 10 percent.
Oh please. Like the man didn’t know Twitter had bots. Musk’s real concern is obvious: Technology stocks have cratered in the last month. If not for the deal, Twitter shares would probably be trading in the 20s. Thus $54.20 is a rich price (as Twitter’s board confirmed in its rush to take it).
At the same time, shares in Tesla, Musk’s car company, have plunged since he first made his offer for Twitter.
Musk has plenty on his plate. Tesla investors are clearly worried fixing Twitter will take more time and energy than he thinks and put an even bigger target on him. Electric cars are the reason Musk is the world’s richest person. He can’t like the way Tesla’s stock has performed since he started dancing with Twitter.
All in all, Musk may be suffering some buyer’s remorse. Offer to spend $44 billion in haste, repent at leisure! At the least, Musk might be hoping to jam Twitter’s board - which so far has shown all the spine one would expect from a company whose general counsel weeps in public - into accepting a lower price.
Twitter is now trading almost 25 percent below Musk’s offer, indicating investors think the odds are at least 1 in 3 the deal won’t go through.
Thus I cannot depend on Musk to let me back on, and the lawsuit must continue.
But that’s only half the reason. (If that much.)
(PAYWALLED FOR 36 HOURS BELOW)
Musk seems serious about allowing free speech on Twitter.
But as others have pointed out, his commitment to free speech is far from absolute. Over the last several years, he and Tesla have aggressively pursued whistleblowers.
Even worse, Musk is in bed with China as much as any Hollywood studio -
Last time I checked, free speech protections were not high on Xi Jinping’s priority list. Twitter is currently banned in the People’s Republic, but some Chinese find ways to use it.
If China tells Musk it wants stronger blocks on Twitter or Tesla will face retribution, will Musk stand up for free speech or Tesla shareholders? He won’t be able to pick both.
What about the fact that Saudi Arabia’s royal family, which own almost 10 percent of Twitter, now supports the deal too? Last month, Musk pointed out the Kingdom is not exactly a free speech haven. Now he is happily going into business with Prince Talal and the gang.
It’s all fun and games until somebody loses an eye, and it’s easy to be a free speech absolutist when you don’t have $44 billion on the line.
But even if Musk does stand up for Twitter, our protections should not depend on him.
These may be private companies, but they are public forums, the most important forums of our time. They need to be open to all points of view, restricted only by the same limitations that the First Amendment applies to speech offline.
The censorious left likes to pretend content moderation online is exceptionally complicated, and thus social media companies need lots of freedom to dismiss views they don’t like. In fact setting limits online is no more complicated than doing so offline, and the United States has managed to figure that balance out.
We have limits on speech offline; they are distant, but they do exist. My free speech rights do not extend to my following you down the street for hours screaming at you, or blasting music outside your house all night. Child pornography is illegal too, and you can’t claim your First Amendment rights extend to a conspiracy to commit murder.
Those limits do not undercut the principle of free speech in the United States or California constitutions.
Judge Alsup didn’t allow every claim in my lawsuit to proceed. Still, in moving the suit past the motion to dismiss stage, he gave me a chance to look at Twitter’s internal documents and external communications about me.
Almost no one else who has sued Twitter or the other big social media companies has gotten that opportunity. And Alsup ordered discovery on an accelerated schedule, so Musk’s takeover cannot possibly close in time for Twitter to avoid it (even before his Friday “on hold” announcement).
I don’t know what that discovery will show about how Twitter viewed its obligations to me, the outside pressure it may have faced, or anything else.
But I know finding out is important - and would be important no matter what Elon Musk has planned for Twitter. We have laws and courts and contracts and constitutions so that we are not dependent on the whims of the rich and powerful.
By the way, if you want to support the suit as it heads into this more expensive phase, GoFundMe has confirmed it will be forwarding donations (I know many of you don’t like GFM, and I understand why, but having set up the campaign with them, I don’t want to move it). You can also email me for my Venmo handle if you would rather use Venmo, or send a check directly to James Lawrence, my lawyer, at Envisage Law - 2601 Oberlin Rd STE 100, Raleigh, NC 27608.
More than 1,000 of you have already donated. Thank you, thank you, thank you!