This week, Joel Thayer, president of the Digital Progress Institute discusses Elon Musk’s purchase of Twitter, whether or not Twitter is a true “town square,” and what it means for the Left's control over big tech.

Tim Doescher: Man, now that Elon Musk is buying Twitter, I wonder if more people will like and share our podcast. John Popp, do you think that's possible?

John Popp: For sure.

Doescher: Well, we can only hope it's for sure. Folks, rate us five stars, leave us a comment. And, John Popp, what's the most important thing they can do?

Popp: Share.

Doescher: That's right. Thank you, Johnny. Go ahead, do it now, and thank you as always. From The Heritage Foundation, I'm Tim Doescher, and this is Heritage Explains.

Elon Musk: Twitter has become kind of the de facto town square. So it's just really important that people have both the reality and the perception that they're able to speak freely within the bounds of the law. It's important to the function of democracy, it's important to the function of the United States as a free country and on many other countries, and to help... Actually to help freedom in the world.

>>> Elon Musk is Correct—Big Tech Platforms Are Digital Public Squares

Doescher: That's Elon Musk at a recent TED Talk, explaining why buying Twitter would be a step toward more free speech, as he strives to treat it as a town square of free ideas. Since that talk, he actually bought it. So now what? Is Twitter going to be the town square he refers to? Let's check in with the left-wing media and their response. Here's Brian Stelter at CNN.

Brian Stelter: Elon Musk has pursued this. People thought might be he's just buying it as a play thing, didn't know how serious he was. Now he's obviously very serious. He's committed his capital to it. He wants to build this business, but I don't think he has... Based on his public statements, it's clear he has a very little understanding of the complexities that go into content moderation and hate speech policies and the like. So he's about to learn how it works and it might be a whole lot more complicated than he realizes.

Doescher: How about we head over to ABC and check in on Sunny Hostin from The View?

Sunny Hostin: And in fact, on Twitter, it is predominantly straight white men. So when Elon Musk says, "Wow, this is about free speech," it seems to me that it's about free speech of straight white men. And so let them have it, let them just go at it. I enjoy the block button on Twitter. I think it has a real outsized influence in our world because politicians and celebrities are on it.

Doescher: Let's just leave it with this viral gem from MSNBC's Ari Melber.

Ari Melber: You own all of Twitter or Facebook or what have you, you don't have to explain yourself. You don't even have to be transparent. You could secretly ban one party's candidate or all of its candidates, all of its nominees, or you could just secretly turn down the reach of their stuff and turn up the reach of something else. And the rest of us might not even find out about it till after the election. Elon Musk says this is all to help people because he is just a free speech, philosophically clear, open-minded helper.

Doescher: Wow. Welcome to planet earth, Ari, that's very telling. So Elon Musk buys Twitter. He refers to it as a town square and says he's going to promote free speech on it. Sounds like a good thing to me, but what does it all mean? What is a town square? Can a private company like Twitter be held to public standards that a town square affords? What does this mean for the left and their control of big tech? If Twitter and other social media platforms are the modern town square, we need individuals like Elon Musk who will make sure that all Americans can exercise their right to free speech on these platforms. Joel Thayer is the president of the Digital Progress Institute and a good friend of The Heritage Foundation. He recently wrote a piece that answers all of these questions, and after this, he explains.

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Doescher: Joel, big tech companies like Twitter, they wield enormous power over our free expression. And as Elon Musk has said, they are the public square, the town square, where people can say what they want, but Twitter in particular, they have a documented track record of chilling this free speech. Now, in your recent piece, you talk more of about the reasoning and the implications of Elon Musk purchase of Twitter and what that means for free expression, but just start us out, just from the beginning, how can it be a town square or a public square if it's privately owned?

Thayer: Traditionally, public squares are run by the government and operated by the government, but that's not always the case, as I noted in my article. There are public squares that are privately owned and the way they get that distinction is that there is some sort of conveyance between some government benefit to that private actor as a result of that exchange.

Doescher: Okay. So let's say somebody says, "I want to build this massive thing onto the building that I occupy, that I own." And the government says, "Okay, you can do that, but you have to make this open to the public," kind of a thing, is that-

>>> Heritage President Reacts to Elon Musk’s Twitter Takeover

Thayer: Sure. And a good example of that is actually our former president, Donald Trump. So when he was building Trump Tower, when he decided to build it, he wanted to exceed the New York's height limit.

Doescher: Okay.

Thayer: He offered to the government that, "Look, if you let me exceed this particular height limit and give me a variance, I will open up this park that ultimately I own and operate and use, but I'll leave it open to the public because you conferred to me a benefit that I didn't ordinarily have. So that there's some meeting in the minds for the government, you too can have something, by allowing me to open up this beautiful park in the most beautiful building, in the middle [crosstalk 00:07:22]." I'm just speaking Trump. That's what I'm doing.

Doescher: Speaking Trump.

Thayer: I'm just speaking Trump. "And frankly, I won't close it off to them. I will give them full access to that."

Doescher: Okay. So pivot now to social media, we want these to be a bastion for expression. These have become the town square, the public square. How is that? How has that happened? And then where has social media gone from there?

Thayer: Sure. So I think even from the start, even before social media companies, the internet, at large, was generally thought of as a giant library, the idea behind the internet was to confer information almost unfettered. And that was basically, I think, Tim Berners-Lee's dream when he opened up the World Wide Web. And you see that bleeding through with different statutes that have been codified, let's say, like Section 230 of the Communications Act, which the idea behind it was, yes, we want to make sure that we're getting dirty stuff off the internet. We don't want porn on websites, we also don't want to encourage harassment or other things. However, we want to make sure that not only do they have the protection to curate those awful things on the internet, but ensure that they also allow freedom to make sure they feel comfortable to allow things that are not necessarily fall in the category of lewd, harassment or cruel or whatever the laundry list of things that they couldn't do.

Thayer: Or other "otherwise offensive material," which is a very vague term, but we want them to ensure that they feel comfortable putting on things that maybe the company itself doesn't agree with. But at the same time, something that allows this whole idea behind the public square, which is encouraging this cradle of free expression, ensuring that this information that they are now hosting is broadly used, and also, frankly, broadly disseminated without government intervention and these companies' intervention. But unfortunately, through a slew of different case law, which I'm sure we're going to get into-

Doescher: Yes.

Thayer: It hasn't really worked out that way, and it seems that some statutes have been... Particularly Section 230, have been overread, in my opinion, to mean that you can do... As a social media company or any other internet platform, whatever you want, with legal immunity and with impunity.

Doescher: Okay. Well, let's pivot to that because I want to talk about, there is a lot of confusion and if you go to any tech conversation in this town in DC or tune in anywhere, there's a lack of clarity in terms of things like 230 or things like different court decisions that have weighed in on the town, public square town, on town square, nature of social media, of the internet. And I wanted to kind of get your take on what is established, what do we know, what have courts said, what has Congress said to guide us and kind of clear up the murkiness?

Thayer: Sure. And you noted one example like the courts and the previous guidance that we have been given from the judiciary are frankly, very favorable to these platforms to do whatever they want, whenever they want and how they want to do it. But it seems like that's changing, especially when you listen to more conservative justices, like Senator Kennedy, who openly called these social media platforms, public squares. And then you look at justices like Justice Thomas. So Justice Clarence Thomas recently said that he believes that the way lower courts and previous decisions have interpreted Section 230 is really overbroad to the point where it is devoid of Congress's intent for the law. So I think that you're seeing a real wave in legal thought on how we are looking at these social media platforms and whether or not they have a responsibility to the public, which as I noted, I think they do.

Doescher: Yeah. So if we establish and we agree that Twitter and social media is a public square, town square, I'm curious then, as you look at Elon Musk, does he believe that? Does he understand that? Or does he just say, "Hey, free speech is good. I'm going to buy this thing and I'm going to do whatever I want to do with it," kind of a thing.

Thayer: And that therein lies the problem. I mean, so you look at Elon Musk. Elon Musk, as much as I don't know why he's been pitched this way as some sort of hero of the right, but-

Doescher: No, he's stood for many left-wing things.

Thayer: Yeah. Elon Musk is very much of the libertarian mindset and he is of the [inaudible 00:12:13] that say, "Just leave us alone." In many ways, that's positive, in other ways, it's curious, what does he mean by free speech? He has actually used a lot of his different companies to push agendas that he feels is appropriate. So the question then becomes, is Elon Musk the savior of Twitter, or does it require something more? Does it require actual congressional action?

Doescher: Wow.

Thayer: And I've argued that we can't rely on essentially the charity of billionaires to get us free speech principles in the social media context. We need Congress to step up and clarify... I argue, clarify the confines of Section 230 to meet today's internet, because remember, Section 230 was dealing with the internet-

Doescher: It was 1996.

Thayer: Yes.

Doescher: [crosstalk 00:13:09] It was a completely different ball game.

Thayer: We're talking about AOL, man.

Doescher: AOL.

Thayer: And the question was-

Doescher: Dial-up.

Thayer: Yeah. Whether or not Drudge was a good idea.

Doescher: Right.

Thayer: Now we're dealing where AOL really had nothing to do with whether what Drudge wrote or anything.

Doescher: Yes.

Thayer: And now we have social media companies that can literally pick and choose [crosstalk 00:13:26] what is good, what is bad, and by extension, what is on, what is off, and also what can be shared and what can't be shared. That, to me, speaks volumes on their ability to control our elections and the way we view the world.

Doescher: As we continue to talk about the problem, I always want to go to solutions, and our friend here at Heritage, Kara Frederick, I watched a hit that she did on TV the other day where she focused on... She didn't necessarily focus on Elon Musk buying Twitter, she said, "Well, what do we do now? What is the next thing that we need to do now?" And I wanted to give you a chance to weigh in on that, because action is extremely important here. And we've talked a little bit about it, but what more does action look like? Let's say Elon Musk buys Twitter, great. It happens. It's going to happen. What should we be pushing for as that happens?

Thayer: We heard a lot about issues in the early '90s to early 2000s, even today, about this concept of net neutrality, which was basically ISPs are going to Rob you of your ability to surf the web. And the idea was that they had such power and control over information that we had to put some sort of accommodation on them. Either that means a no blocking rule, a no prioritization rule, a transparency rule. But I mean, are they really the ones doing it? And maybe in today's age, it's worth evaluating, can those same principles be applied all the way down the stack? Which is basically what Kara was arguing, where an ISP cannot block a particular piece of content or data, in the same way that, I guess... Or, at least, from a decision-making standpoint, in the same way that maybe Twitter or Facebook can't or worse, operating systems.

Doescher: Right.

Thayer: I mean, let's face facts, look at today's app stores. [inaudible 00:15:32] Look at what Apple did to Parler. I mean, Apple did that with a flip of a switch and use some BS justification to do it, not [crosstalk 00:15:40] to mention, they use their... I argue, a monopsony power, which for the uninitiated, just means that they're so big as a customer, that the seller will do whatever the customer says.

Doescher: Yep.

Thayer: They went over to Amazon and said, "You can't host this either."

Doescher: Right.

Thayer: So effectively, wiping Parler off the internet based off of one company's decision.

Doescher: Yeah. The company might exist, but if you don't have a host, which was the Amazon server, if you don't have that, you don't exist. There's no way that you can [inaudible 00:16:11]. And that's why they went away for so long.

Thayer: And another thing why I think-

Doescher: Again, that's the stack, it's a bunch of different things that help a website or a social media platform exist. And if they're all in bed with each other colluding, then it doesn't allow... We have a problem at every level.

Thayer: Yeah. And it's high time for us to stop siloing the internet unnecessarily and start looking at it more holistic because as we get more integrated with our digital footprint, the more companies interact with us. And so, one company doesn't have access to our one footprint, all these companies do. If one company wants to get rid of you, then all these other companies will have to either do business with the person who essentially wants to get rid of you. So having that type of framework and that type of consumer protection, especially for conservative campaigns, I mean, think about this.

Doescher: Yeah. I mean, those campaigns were silenced, basically, on these platforms.

Thayer: And this is statistically proven.

Doescher: Yes.

Thayer: I mean, there was a study that was done, I want to say Cornell, where they found that certain emails or certain email brands like Gmail or Outlook were favoring one side or the other or using spam filters. Now that's a whole different legal regime, but still, same principle. The idea is some coder somewhere in this company has a political grind and they want to enforce it using whatever resources these companies have available to them, and that's literally the entire internet. That's the resource we're talking about.

Doescher: Joel, thank you so much for being here with us on Heritage Explains. Head to the show notes, folks, to read more about this episode, rate us, share us, comment. If you've got questions, we've got answers. Email us at [email protected], and we will respond. Michelle's up next episode, we'll catch you then.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It is produced by Michelle Cordero and Tim Doescher, with editing by John Popp.