The price of free speech: why Elon Musk’s $44bn vision for Twitter could fall apart

Contained within 95 pages of dense legal jargon, the warning from Twitter to Elon Musk was clear: don't use your considerable power on the social media platform to attack the company.

The world's richest man and owner-in-waiting of Twitter signed an agreement for the planned $44bn (£35bn) takeover last week confirming that he could tweet about the deal so long as "such tweets do not disparage the company or any of its representatives".

Yet hours later the self-described "free speech absolutist" was engaging with tweets criticising senior Twitter staff, including an interaction with a political podcast host who had labelled the company's legal head, Vijaya Gadde, Twitter's "top censorship advocate".

The inevitable consequence for Gadde was one of the grimmer phenomena of social media: a pile-on. Comments included calls for her to lose her job and, in a typical example of unpleasant digital hyperbole, statements that Gadde would "go down in history as an appalling person".

Announcing the deal to buy Twitter last week, Musk said: "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." Musk has a history of contentious tweets but his Gadde post fuelled concerns in some quarters about the Tesla chief executive's idea of free speech. Will it come at the cost of protecting Twitter users from abuse, cyberbullying and extremist content?

"I think that Musk's conception of free expression is both contradictory and foolish," says Jillian York, a free speech activist and the author of Silicon Values: the Future of Free Speech Under Surveillance Capitalism. "Absolutism on a platform like Twitter fails to take into account the very real harms that Twitter can cause as a global platform, for instance being used by malicious actors like Isis and rightwing extremists." She adds there is a difference between the idea of freedom of speech as embodied by standing on a platform at Speakers' Corner in London and online, where you can "scream into the void to billions of people". She says: "Platforms like Twitter are a completely different animal and you're talking about somebody's ability to ruin someone's life in an instant."

The Gadde post elicited a wave of expressions of support, and criticism of Musk, from current and former employees. A group of female Twitter employees, under the handle @TwitterWomen, posted "the women at Twitter are the best of us" while the platform's former chief executive, Dick Costolo, accused the billionaire of "making an executive at the company you just bought the target of harassment and threats".

There is also speculation that Musk will allow banned figures back on to the platform, including former president Donald Trump, who has denied that he wants to return after his account was permanently suspended in January 2021. Nonetheless, The Wall Street Journal reported this weekend that Musk is "dismayed" that Trump remains banned. The Center for Countering Digital Hate, a US-British campaign group, has said that reinstating people such as Trump, extreme-right pundit Katie Hopkins and InfoWars founder Alex Jones would mean that Twitter's safety rules "don't exist any more".

The deal, which is backed by the board but must be approved by shareholders, has also raised concerns about one person controlling such a major platform. Twitter is significant even though the majority of its 217 million daily users get their news elsewhere. In Europe only 9% of people use Twitter for news, rising to 12% in North America, 14% in the UK and 35% in Africa, according to the Reuters Institute for the Study of Journalism (RISJ) at Oxford University. But those people who do use Twitter are the political and media equivalent of influencers - journalists, commentators, celebrities and politicians.

"The fact that many politicians, powerful individuals and pundits are frequent users, and that some journalists feature what they say in their reporting, mean Twitter is clearly an important part of how the political and media agenda is set," says Rasmus Kleis Nielsen, director of the RISJ. "In that sense, a rich business magnate owning it raises the same kinds of issues as wealthy individuals controlling influential news media or other social media platforms. It's a political question how individual countries want to regulate such ownership."

The deal is not expected to face scrutiny from competition authorities in the US but politicians are starting to address the question of internet regulation, and the issues over free speech that come with it. Landmark laws are being introduced in the UK and the EU and they will have a direct impact on the shape of Musk's town square.

In another post-agreement tweet last week, Musk acknowledged that individual states' conception of freedom of speech would trump his own. He wrote: "By 'free speech', I simply mean that which matches the law. I am against censorship that goes far beyond the law." But the law - in the UK and the EU - is about to change.

In the UK, the government is introducing the online safety bill, which imposes a duty of care on tech companies to protect users from harmful content. Some of the content it covers is already banned by the likes of Twitter, specifically posts containing things that are criminal in the offline world, such as terrorist or child sexual abuse content. But it will also require major platforms such as Twitter, Facebook and TikTok to deal with "legal but harmful" content - in other words posts that fall below the threshold of criminality but can still cause psychological or physical harm. This has alarmed free speech advocates (York calls it "dystopian") but Musk will have to abide by it - the British communications regulator, Ofcom, could fine companies up to 10% or their turnover for transgressions of the law.

"Services that operate in the UK are subject to UK regulations. Online platforms are no different to services in other sectors. Once enacted, Twitter will need to satisfy Ofcom that they are complying with the duties to protect users," says Maeve Walsh, a policy consultant who helped shape the regulatory framework behind the bill.

At the same time, the EU is implementing the Digital Services Act (DSA), which requires the major social media platforms to do more to tackle illegal content. This includes forcing them to allow users to flag such content in an "easy and effective way" so that it can be swiftly removed. "Twitter, even owned by Mr Musk, needs to moderate content to comply with EU rules. If he wants to do business in EU, that's a fact," says Christel Schaldemose, a Danish MEP and the chief negotiator on the DSA.

In the US, content moderation has been a hotly debated topic for years among legislators. While there is some bipartisan support for reforms, the subject of how and whether platforms should be held liable for content published on their sites remains controversial.

Section 230 of the Communications Decency Act of 1996 currently absolves platforms of responsibility for content posted by others. Both Trump and President Joe Biden have stated their support for a reform of section 230, albeit for different reasons. Republicans have claimed, largely without evidence, that rightwing voices are being censored while Democrats say platforms are hosting harmful content, disinformation and misinformation without consequences.

But campaigners say reforming or repealing section 230 could do more harm than good: it could prompt companies to delete wide swaths of posts, even if they are not harmful, for fear of running foul of the law - perhaps in the process denying oppressed groups one of their most powerful platforms.

"Section 230 is a foundational law for human rights and free expression globally," says Evan Greer, the director of digital rights group Fight for the Future. "Regardless of what Musk wants to do, changing section 230 would make it even harder for platforms like Twitter to moderate harmful content through a human rights framework, and more likely that platforms would remove wide swaths of legitimate content in order to avoid litigation."

Also contained within the deal to buy Twitter is a $1bn break fee, which could be payable by either side depending on the circumstances of how the deal falls apart. As it becomes increasingly clear that implementing his free speech vision faces significant hurdles, Musk may consider it a fee worth paying.