Three Social Media Billionaires Walk into a Crowded Theater and Yell, Fire!

Let’s don’t consider the recent news about each of three social media sites in separate vacuums.

Last week Pavel Durov, the 39-year-old billionaire founder of Telegram was arrested in Paris, then charged with “a wide range of crimes for failing to prevent illicit activity on his app,” including child pornography, drug sales and fraud, according to The New York Times.

About the same time, Mark Zuckerberg, the 40-year-old billionaire founder of Facebook said that the Biden administration in 2021 “repeatedly pressured” his Meta outlets to “censor” COVID-related content, which included “humor” and “satire” and, one presumes, such “remedies” as drinking bleach.

“He knows it’s not true,” the estimable veteran tech journalist Kara Swisher told CNN’s The Source. Zuckerberg, heretofore considered a left-leaning billionaire friend of the Democratic Party was hedging his bets. He understands that a President Harris would not take his claims out on Zuckerberg or his businesses, but a President Trump would if he didn’t confess, Swisher said.

In this regard, Zuckerberg serves as a sort of cowardly yang to X-Twitter owner Elon Musk’s yin. The 53-year-old billionaire has proven to be among the most vociferous of his social media platform’s conspiracy theorists, and last week Brazil’s top judge, Alexandre de Moraes suspended X “over misinformation concerns and for failing to appoint a legal representative” in South America’s most populous country, according to Axios. Brazil’s full supreme court on Monday upheld de Moraes’ ruling.

Musk, famously or infamously a “free speech absolutist,” has accused de Moraes of “destroying” free speech for “political purposes, and the platform formerly called Twitter accused the judge of “censorship.”

Such free-speech absolutism seems to fit in nicely with those tired of “wokeism” stifling their right to spout racist words and terms.

Translating the words of Brazil’s president, Luis Ignácio Lula da Silva, The Wall Street Journal reports he said his country should serve as an example for the rest of the world on how to deal with Musk. The "world is not obliged to put up with Musk's far-right ideology just because he is rich," da Silva told reporters Monday.

It must be noted that da Silva’s predecessor, the Trump-right Jair Bolsonaro, had tried to overturn his re-election loss last year and that many on Brazil’s right, including pro-Bolsonaro lawmakers and activists believe the current government’s actions against X-Twitter are being used to suppress Musk.

But in the old newspaper days, the powerful were warned not to argue with publishers who purchased ink by the barrel. Perhaps the modern corollary is that you don’t argue with tech billionaires who buy social media sites for $44 billion?

Earlier last August, Musk tweeted on X that the UK was headed for a civil war after a week of riots between police and extreme right-wing protesters upset about the stabbing deaths of three young girls at a Taylor Swift-themed dance party in Southport, on England’s northeast coast. Social media posts had speculated, falsely, that the suspect was an asylum-seeker, the BBC has reported (shades of Donald J. Trump and the Central Park Five).

You might think the antidote to Musk’s free-speech absolutism, as I did, is the old shibboleth, that it “doesn’t mean you can yell ‘fire!’ in a crowded theater.” But a quick DuckDuckGo of this quote, made by Supreme Court Justice Oliver Wendell Holmes, Jr., in 1919 is no solution.

In a January 2022 piece for The Atlantic, Jeff Kosseff writes that “you usually are allowed to do that without fear of arrest, lawsuits or other legal consequences.” What does apply is Justice Holmes’ written opinion for a unanimous court that upheld conviction of the general secretary for the US Socialist Party for violating the Espionage Act by printing leaflets criticizing the military draft as unconstitutional.

In Schenk v. United States, Kosseff writes, Charles T. Schenk’s conviction was justified because his leaflets constituted a “clear and present danger” during wartime.

The next year, in Abrams v. United States, Holmes wrote the dissenting opinion in which seven justices voted to affirm the conviction of Russian immigrants for distributing leaflets criticizing US military policy in Russia. In essence, Holmes argued as one in a minority of two, that you can yell “fire!” in a crowded theater so long as everybody evacuates unhurt.

Musk did not start the civil war he predicted for the UK, so under US law at least, he might get away with it.

What’s more, Musk’s X-Twitter, as well as Durov’s Telegraph and Zuckerberg’s Facebook, Instagram and whatever else he’s bought lately have Section 230 to lean on. Legally, you might be able to go after the source of libelous, defamatory or riot-inducing posts, but you can’t go after the platforms for such posts.

That’s clearly changing elsewhere. More than two years ago, the European Union adopted its Digital Services Act, which requires social media companies to be more aggressive in policing illicit content or risk billions of dollars in fines. And now Brazil’s government is getting into the act.

Could such digital diligence come to America? Don’t count on it – the billionaire bros of Silicon Valley are spending the kind of lobbying money on Washington that might otherwise be used to hire some serious gatekeepers, on their way to becoming our nation’s oligarchs. And Section 230 has been discussed for years as a law overdue for an update. It looks like it’s going to take a shift in Internet content back to quality newspaper-style ethics to make it clear which comments and opinions are worthy of publication, and which should be circularly filed as misinformation, disinformation or out-right conspiracy theory.

Unfortunately, too many reputable newspapers have been gutted or put out of business by the advertising profit-sucking social media model. So…any of you have any ideas?

Lassa is founding editor of The Hustings.