This month Elon Musk decided it was time to give @realDonaldTrump his tweet back. In order to do so, Mr. Musk first had to buy Twitter. That’s not a problem when you are the richest person in the world and have 44 billion dollars parked in some offshore bank account. Mr. Musk was motivated to buy Twitter because, as he views the world, there’s not enough free speech.
Mr. Musk explained his reasons for purchasing Twitter in a Tweet as follows:
“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,” said Mr. Musk. “I also want to make Twitter better than ever by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans.”
Now that his offshore bank account is 44 billion dollars lighter, Mr. Musk, as the czar of Twitter, has announced one of his first major proclamations: he will restore tweeting privileges to @realDonaldTrump. Watch Mr. Musk announce his intentions to the world.
However, there is a slight problem with this announcement. Our ex-president is not interested in reviving @realDonaldTrump. Our ex-president has been very busy in the days following January 6, 2021. One of the things he did was to start his own social medial platform, TruthSocial. He needs Twitter like he needs another a hole in the head. Twitter is a competitor and we all know what @realDonalTrump thinks about competitors.
Notwithstanding the fact that Mr. Musk’s overtures to @realDonaldTrump might fall on deaf ears, his reasons for buying Twitter bear scrutiny. In particular, one must ask, is Elon Musk the proponent of free speech that he claims to be? I think the answer is no.
What is Free Speech?
First we need to ask what is this thing called “free speech” that Mr. Musk believes is the bedrock of a functioning democracy and authenticates all humans? Unless you are like me and grew up in the 60s with parents who hovered over you whenever you made a long distance call, we all know that its costs nothing to talk. So the “free” in “free speech” isn’t about money. It’s about freedom from restrictions. Free speech stands for the concept of being able to speak one’s mind without censorship by an authority.
In fact free speech is so important to our country that it is embedded in the First Amendment to our Constitution. The First Amendment states in part:
Congress shall make no law … abridging the freedom of speech … .
When you are at a party and someone complains that their employer won’t let them post messages on the Internet about the company, there is always some smarty-pants who says that is a violation of the rights guaranteed you by the First Amendment. They claim your employer is violating your First Amendment rights and that you should be able to Tweet away about the company. Then the smartier-pants to their right says not so fast. The smartier-pants points out that the First Amendment applies to Congress, and only to Congress. And that your employer, unless you work for the government, is not Congress. So, the smartier-pants smugly and wisely warns you to think twice before you Tweet about your employer, because your employer is probably well-within its rights to restrict your ability to speak about it. In other words, you are not free to talk about your employer.
Score one for the smartier-pants. They are absolutely correct that the First Amendment applies to Congress and that entities and persons other than Congress can restrict an individual’s freedom of speech. How is this accomplished? Through contract. It is quite commonplace in business for an employer to enter into a contract with its employees, typically at the time of hiring, in which an employee agrees not to disclose information about the company in public. Such a contract may be called a non-disclosure agreement, an “nda,” or a confidentiality agreement. In exchange for the company agreeing to hire you, pay you, and provide benefits to you, you agree to shut up about certain aspects of the company. If you want food on the table, not a bad deal.
Let’s be clear. The premise of most non-disclosure agreements is perfectly legitimate. A company asks its employees to sign a confidentiality agreement so the company’s proprietary information will not be disclosed to the public. For many companies, especially high-tech companies, intellectual property comprises the crown jewels of the company’s assets. If a company’s intellectual property is disclosed, it is no longer the property of the company; it is in the public domain. There goes its competitive advantage. There goes your paycheck.
But let’s be clearer about one other thing. A confidentiality agreement is a restriction on free speech. It inhibits a person’s ability to discuss what they know. Employers can abuse their efforts to enforce confidentiality agreements. If a company asks its employees to agree to terms of confidentiality that are so broad that they diminish an employee’s ability to get another job, the confidentiality agreement may be declared invalid.
Non-disclosure agreements arise in other contexts, as well. Frequently disputes between parties are resolved, but the terms of resolution are not permitted to be disclosed by either party to anyone else. Pursuant to the restrictions of a non-disclosure agreement. A famous example of this was the Stormy Daniels lawsuit against @realDonaldTrump. One of the key issues in that lawsuit was whether Ms. Daniels was prohibited by a non-disclosure agreement from suing our ex-president and disclosing details about the alleged transactions between the two of them.
Further, speech is not free in the courtroom. From watching Perry Mason, L.A. Law, Ally McBeal, and CSI, we have all learned that lawyers can object to testimony in a trial. There are numerous restrictions on what can be said in a trial and who can say it. The art of the objection was taken to new levels in the current defamation case of Johnny Depp and Amber Heard. In that case, Ms. Heard’s lawyer objected to his own question. It appears that he thought he could ask a witness a question, then object when the witness attempted to answer his question. Social media is having a field day.
The Johnny Depp – Amber Heard defamation lawsuit is another example of when speech is not free. Our laws prevent a person from engaging in speech that defames another person. Defamation disputes are not strictly an invention of United States laws. Our laws have evolved from the laws of England, where they know a good defamation lawsuit when they hear one. In a current case, known as “Wag-gate” two high-profile celebrity wives of soccer stars are suing each other for defamation. In Wag-gate, Coleen Rooney knowingly circulated untrue stories about herself in an effort to discover who was leaking these stories. Then when the untrue stories were leaked by Rebekah Vardy, Rooney sued Vardy for disclosing these untrue stories. But these were the same stories Rooney had herself originated. A page out of the notebook of Ms. Heard’s lawyer. Where there is money, there is defamation.
Despite the clear language of the First Amendment, our Supreme Court has held that, in certain circumstances, Congress can abridge our freedom of speech. For example, in Brandenburg v. Ohio, the Supreme Court held that the government may forbid speech intended to incite violence. Every child knows you can’t yell “Fire!” in a crowded movie theater. Pornography is highly regulated and may be banned in certain circumstances. Cigarette companies are not free to advertise on television, and as Mitt Romney can tell you, for the most part companies are treated as people under our laws. Florida teachers are not free to talk about issues of gender identity in grade school. Speaking of Florida, try to get the following math problem published in a middle school textbook in the Sunshine State:
Sally invites her friends to a birthday party. First, Jane, a heterosexual woman, arrives, soon followed by Frank, a straight man. Next Bill and Robert, two gay men, arrive together. Shortly thereafter, Pat, Jo, and Jonnie, three transvestites arrive together. In order to maintain a Fibonacci progression, how many lesbians must be in the next group that arrives by car? Please explain your answer. For extra credit please answer the following. Does the propulsion system of the car transporting the lesbians to the party affect your answer? For maximum bonus points please discuss propulsion systems fueled by: a) fossil fuels (both gasoline and diesel); b) electricity; c) hybrid; d) hydrogen; e) solar; f) wind; g) nuclear; h) rubber band; i) steam; and j) flux capacitor. If, as of the date you are answering this problem, any propulsion system mentioned above does not yet exist, please explain why it should exist and why it would be preferable to dirty fossil fuels.
Congress is able to pass such laws based the powers granted to it in other sections of the Constitution. More particularly, most legislation that restricts speech is based on Article I, Section 8, Clause 3 of the Constitution (the “Interstate Commerce Clause”), which gives Congress the power to regulate interstate commerce. The Supreme Court has consistently upheld laws authorized by the Interstate Commerce Clause that inhibit free speech, when such laws are narrowly tailored to achieve their purpose with minimal impact on free speech. But the undeniable effect of such laws is to restrict freedom of speech.
Thus, in reality, there is no such thing as pure free speech. As described above, there are many limitations to “free speech.” These limitations are imposed by our laws, and violating them can lead to punishment, monetary and otherwise, for the person who believes freedom of speech trumps the law. In many ways, we, as citizens of a country, have incorporated into our everyday behaviors certain limitations on what we can say because we abide by the law. But apparently these limitations trouble Mr. Musk and, in his opinion, detract from our authenticity as persons.
What is Mr. Musk’s Track Record regarding Free Speech?
Twitter is not Mr. Musk’s first rodeo. A few of Mr. Musk’s other rodeos include PayPal, Tesla and SpaceX. If we look at the history of Mr. Musk and those companies, we will see that Mr. Musk has compiled quite a track record (pun intended) which suggests that he may not be the proponent of free speech he makes himself out to be.
In 1999, Mr. Musk founded x.com which soon merged with PayPal, where, in 2000, Mr. Musk became the CEO. In less than one year, Mr. Musk was ousted as CEO. As part of his severance package, Mr. Musk entered into an agreement with PayPal, the terms of which were to be kept confidential. In 2002 eBay acquired PayPal and it is believed that Mr. Musk received approximately $175 million dollars, but exact numbers are not known, due to the confidentiality of his agreements. It appears that in this circumstance, Mr. Musk was a bit reluctant to let others exercise their rights of free speech.
After PayPal, Mr. Musk founded Tesla. Tesla has a very checkered history with respect to confidentiality agreements. As discussed above, employers commonly require their employees to sign a confidentiality agreement as part of the quid pro quo for hiring the employee. Sometimes employers overreach with respect to what they ask the employee to keep confidential. That was the finding by the National Labor Relations Board (“NLRB”) in March of 2021. The NLRB held that Tesla violated National Labor Relations Act when, as part of its employee confidentiality agreement, it required its employees to refrain from talking to the media about Tesla. One must wonder how these Tesla employees could authenticate their lives living under such a burdensome restriction.
Further, Tesla has required not only its employees to agree to terms of non-disclosure, but also its customers. So much for testimonials. Tesla customers who purchased the company’s Full Self-Driving Software (“FSD”), were required to sign a confidentiality agreement regarding use of the software. The confidentiality agreement asked its customers to restrict their posts on social media film clips about using FSD. The same social media Mr. Musk has now purchased. This might seem fair game, until you consider that certain government agencies, such as the National Highway and Transportation Authority (“NHTSA”) have asked Tesla to cease such conditions of confidentiality. Tesla was using these confidential agreements to prevent its customers from cooperating with NHTSA when NHTSA was investigating the safety of Tesla’s FSD Software. NHTSA wrote a letter to Tesla in which NHTSA stated:
“Recently, NHTSA has become aware of reports that participants in Tesla’s FSD early access beta release program have non-disclosure agreements that allegedly limit the participants from sharing information about FSD that portrays the feature negatively, or from speaking with certain people about FSD. Given that NHTSA relies on reports from consumers as an important source of information in evaluating potential safety defects, any agreement that may prevent or dissuade participants in the early access beta release program from reporting safety concerns to NHTSA is unacceptable. Moreover, even limitations on sharing certain information publicly adversely impacts NHTSA’s ability to obtain information relevant to safety.”
NHTSA has attributed hundreds of accidents, including five fatalities, to the failure of Tesla’s FSD to operate safely. So much for the full disclosure of ideas in order to assist investigations to insure the safety of drivers of Tesla automobiles who seek to maximize the longevity of their fully-actualized lives.
And then there is Mr. Musk’s next venture, SpaceX. SpaceX regularly enters into conditions of confidentiality with its vendors and collaborators. Much to Mr. Musk’s chagrin, the servers of a vendor of SpaceX and Tesla were hacked last year, causing many confidential documents to be leaked. Why all this confidentiality, if we are supposed to live in a society of pure free-speech? Further, consider the following. Jeff Bezos has flown into space; Richard Branson has flown into space. Each in his own company’s spaceship. Why would a person with an ego the size of Mr. Musk’s not fly into space to keep abreast of his competitors? Could Mr. Musk know something the rest of us don’t know?
That’s the question that residents of Brownsville, Texas have been asking about SpaceX’s developments in the city. In southern Texas, Tesla and SpaceX are investing in these cities, but no one is certain just what Mr. Musk’s future plans are for these cities. The cost of housing is skyrocketing. Mr. Musk is Mr. Mum when it comes to explaining to the citizens of south Texas what tomorrow holds in store. One wonders if any of the real estate developers in Brownsville might be friends-of-Elon who who hear whispers not audible to the rest of us. However, Mr. Musk appears to have tipped his hand when he told the citizens of Boca Chica Village that he wanted to rename the town “Starbase.” In order to generate some momentum for the name change, Mr. Musk has erected a monument of a rocket that invokes comparisons to the mythic spaceship in Fellini’s 8 ½.
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SpaceX Rocket Monument in Boca Chica Spaceship Scaffolding in 8 1/2
Some of the shareholders in Mr. Musk’s companies are not thrilled with his propensity to Tweet about things that they think he should not Tweet about. Not all of his investors share his belief that the world should know everything he is thinking. They may be concerned that Mr. Musk’s brain has been Twitter-hacked. Just this month, some of Tesla’s shareholders filed a motion in a lawsuit against Mr. Musk seeking to impose a gag order on him to prevent him from discussing certain Tweets he made concerning Tesla. While the shareholders lost their motion, they maintain that the judge ruled that Mr. Musk’s Tweets regarding his intent to take Tesla private contained false and misleading statements, in violation of federal securities laws (still more laws that restrict freedom of speech).
Conclusion
What is the take away from all of the above data points regarding Mr. Musk, his companies, confidentiality agreements, and free speech? My conclusion is this. In the words of Dr. Evil when he was speaking to Austin Powers, “We’re not so different, you and I.” For sure there are differences between Mr. Musk and me, such as the number of commas in our bank account statements. But with respect to free speech, I think he is no different from me. As I review the stance he and his companies have taken on free speech, I think he is an advocate of free speech, only until it no longer serves his financial interest. When the full disclosure of ideas and information cuts against his economic prosperity, he restricts free speech.
In other words, Mr. Musk is no different than you, me or any other capitalist. He’s in it for the money.
How long Mr. Musk will remain a champion of free speech remains to be seen. Right now, the major reason the Twittersphere is fertile with free speech, both offensive and inoffensive, is due to the Communications Decency Act (“CDA”), a federal statute. The CDA protects an Internet host, like Twitter, from being sued because of the content of messages posted by its users. The CDA has come under a lot of scrutiny recently. In June of 2020, the Department of Justice held hearings on amending the CDA. While the DOJ made numerous recommendations, reforming legislation has yet to be enacted. Many commentators have added their two cents as to how to improve the CDA. With legislative reform being considered today, the handwriting appears to be on the wall to limit the shelf-life of immunity from liability that an Internet host now enjoys. When that immunity is ended, will Mr. Musk stick around?
In case you were wondering, I thought my math problem was a little over-the-top. For sure, it will never get published in a Florida textbook (but my agent has gotten some nibbles in China). Perhaps even the host of my website will request that I remove it. That will be fine with me. If that happens, you will find it on Twitter, posted by @realPeterKelman. Mr. Musk won’t mind. And it will help authenticate me as a human. What more can you ask for?
Copyright 2022. Peter Kelman, Esq.
All rights reserved.