Some thoughts on Senator @JohnCornyn's question during Senate Judiciary #BigTech hearing this morning about why Twitter doesn't apply the Brandeisian principle of "best answer to bad speech is more speech."

1. THE FIRST AMENDMENT BINDS THE GOVERNMENT, NOT PRIVATE ENTITIES. Brandeis's quote comes from the 1927 Supreme Court case Whitney v California, which dealt with the criminal conviction of Anita Whitney for speech advocating gender and racial equality.

(A conviction, it should be noted, that Brandeis VOTED TO UPHOLD, despite his ringing defense of free speech in his concurring opinion)

Twitter is not the government. No one has the RIGHT to speak on Twitter or any other private platform. Like restaurants, stores, bakeries, etc., social media companies have the right to set whatever rules they want about the speech or conduct they will allow or promote.

(That's known also as the free market, at least when it produces results that conservatives like)

2. THAT MEANS TWITTER HAS THE RIGHT TO DELETE ANYTHING IT WANTS - false election claims, medical disinformation, conspiracy theories, incitement to violence, those "how it's going" memes

3. Twitter's CHOICE to leave any of this up could be praised/defended as encouraging free speech, but that's in a cultural, not legal sense. Labeling false & dangerous information, as opposed to banning or deleting it outright, is a business decision, for better or for worse.

4. In that cultural free speech sense, what Twitter is doing with labeling and contextualizing is EXACTLY THE KIND OF COUNTER SPEECH THAT CORNYN CLAIMS TO VALUE.

5. WHAT IS MORE, that kind of labeling and contextualizing is an EXERCISE OF TWITTER'S OWN FIRST AMENDMENT RIGHTS. It's THE COMPANY'S OWN SPEECH, and government attempts to limit private companies rights of speech IS ACTUAL CENSORSHIP.

6. AND FINALLY, for the love of all that is holy, could people please start reading that Brandeis quote accurately and in its entirety. He does NOT say that the answer to bad speech is always more speech. Here's what he says:

"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence."

IF "there be time." IF the evil can be averted "by the process of education." Lies always travel faster than truth. Corrections after the fact have little or counterproductive effect. Some speech, like threats or the exposure of private info, cannot be answered or countered.

Not only do private companies have no obligation under the First Amendment or any other law to allow baseless claims of fraud, medical disinformation, threats, nonconsensual pornography, harassment, and incitement to violence to flourish on their platforms -

When they do so, THEY UNDERMINE FREE SPEECH AND UNDERMINE DEMOCRACY. Enough of the Orwellian invocations of free speech and the First Amendment to justify the silencing of dissent and the endangerment of vulnerable communities.