Fire In A Crowded Newspaper: Misinforming Readers About Free Speech Isn’t Helping

It seems to be a rather common phenomenon, but various major newspaper opinion columnists love opining on the First Amendment and free speech without ever bothering to, you know, understand them.

Edward Luce, a long-term journalist and commentator, and scion of an aristocratic British family, is currently the chief US commentator" (what a title!) for the Financial Times. On Friday he published a piece claiming that Elon Musk is a danger to democracy. And that might well be true (or might not). But the column is so full of wrongness that you won't learn much about it one way or the other.

It is true that the UK government and Elon Musk have been engaged in a stupid battle of words over Elon's propensity to promote and spread bigoted nonsense that is encouraging violence. As I've written elsewhere, this whole approach seems entirely counterproductive and only plays to Musk's advantage.

But Luce is quite sure the problem is really American free speech laws. Or, at least, as he totally misrepresents them. On top of that, he tries to distinguish Musk pushing his political views via ExTwitter from other billionaires who own media empires pushing their own views, which makes no sense:

The key question is what, if anything, democracies can do to address the danger from Musk. It is one thing having a newspaper proprietor, or the owner of a television station, pushing their biases in their outlets. This has always happened and it is protected speech. Depending on the democracy, there are also laws against concentration of media ownership. Musk has freest legal rein in the US, where the First Amendment protects almost all speech. Moreover, internet publishers are exempt from liability under the notorious Section 230 of the misleadingly named Communications Decency Act. But even in America you cannot falsely shout fire in a crowded theatre.

The difference between X and say the right-leaning GB News in the UK, or whatever platform the far-right radio host Alex Jones is using in America, is that the latter two are siloed channels. X claims to be the public square. In some respects, people are right to point out that Twitter is not real life". It isn't. But when racist thugs falsely learn on X that refugees are child killers then gather to burn down refugee hostels -the site becomes all too real. At critical moments, X has become a key vector for potentially lethal untrue assertions. That its owner would endorse some of them ought to be a matter of public interest.

But, of course, almost everything in these two paragraphs is wrong. Biased newspaper owners used their own publications to push all sorts of false and misleading journalism to shape their own interests for decades. What Musk is doing is honestly no different than what Rupert Murdoch has done, or others like William Randolph Hearst have done. Henry Ford bought a newspaper just to push antisemitic nonsense. It's just that Musk is dumber, more gullible, and has more sycophantic fans.

Still, more to the point, almost all the claims in the first paragraph are wrong. Using the fire in a crowded theater" line should disqualify anyone from being taken seriously on any discussion about free speech. There is a pretty short, and pretty well-defined set of classes of speech that are not protected. But, when people are using the fire in a crowded theater" line, they are almost universally saying well, because this other speech is not protected, surely it's fine to add in this other speech I dislike to make it unprotected.

But, in this case, everything else is still wrong. Some of the concern about the speech on ExTwitter is that it's incitement to violence. And we do have an exception to the First Amendment for incitement to imminent violence. Arguably, some of the comments that have been of most concern may apply there.

Still, the comment about Section 230 is wholly out of place. Elon owns ExTwitter. The company receives no Section 230 protections for Elon's speech because it's seen as the company's speech itself. So Section 230 has literally nothing to do with what Elon is saying. The whole point of Section 230 is that you put the liability on the proper party - the speaker, rather than the platform. But when the speaker and the platform are the same, there can absolutely be liability.

This could have easily been explained to Luce or the FT's fact checkers or editors, if anyone had bothered to ask an actual expert.

(And we won't even spend much time on his misleadingly named" quip, because it also shows a stunning ignorance of the history of Section 230. Section 230 was an entirely separate bill that was added to the blatantly unconstitutional Communications Decency Act in a weird attempt to appease critics of the CDA. The rest of the CDA was found unconstitutional in a case that maybe Luce should have read, leaving just Section 230, which was never actually intended to be a part of the CDA.)

The second paragraph is perhaps slightly less egregious, but still problematic. That Elon likes to declare ExTwitter to be the public square" has no impact whatsoever on reality. It is not the public square. It is a private shop on one corner of the actual modern public square, which is the wider internet. But so too are the various media properties and nonsense peddlers that Luce is trying to claim are different.

Racist thugs" can just as easily falsely learn" racist nonsense in a wide variety of UK newspapers from the Sun, to the Daily Mail, to the Telegraph and beyond. You could just as easily repeat this sentence about the people behind much of the UK tabloid media: At critical moments, [insert UK tabloid] has become a key vector for potentially lethal untrue assertions. That its owner would endorse some of them ought to be a matter of public interest."

Yes, Elon is a gullible fool and it's ridiculous that he is so easily used as a pawn in the disinformation spreading campaigns of those seeking to cause chaos. But it doesn't help when people like Luce spread disinformation themselves. It certainly does not bring us any closer to think through how society deals with such nonsense.