But a conservative-led movement to rein in what some see as “censorship” by Silicon Valley giants is poised to change how they approach such decisions. Between a growing field of state laws trying to limit content moderation and Elon Musk’s determination to loosen Twitter’s policies, posts like Ye’s may soon become more common online.
A law passed by Texas last year, which could become a model for other Republican-led states if upheld by the courts, prohibits major online platforms from censoring users or limiting their posts based on the political views they express. Legal experts told The Washington Post that such laws would make it far more risky for social media companies like Meta, which owns Instagram, and Twitter to moderate even blatantly anti-Semitic posts like Ye’s.
And Musk has said that one of his goals for Twitter, should he complete a $44 billion deal to buy the company and take it private, is to provide a forum for legal speech of all kinds. “If the citizens want something banned, pass a law to do it, otherwise it should be allowed,” he tweeted in May.
By that standard, Yes’s tweet would likely stand, at least in the US, where hate speech is not against the law. “It’s a vile tweet, but there’s no doubt it’s protected by the First Amendment,” said Jameel Jaffer, executive director of the Knight First Amendment Institute.
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Offensive posts are of course nothing new on social media. But the biggest platforms, including Meta, Twitter, Google’s YouTube and ByteDance’s TikTok, have become much more active in recent years in developing and enforcing rules that limit posts deemed threatening or hateful to other users or groups of people. Those efforts have sometimes drawn backlash from prominent conservatives, from former President Donald Trump to Texas Gov. Greg Abbott to Musk, who argue that tech companies have gone too far in suppressing conservative voices.
Texas Attorney General Ken Paxton did not respond to a request for comment on whether Twitter or Instagram would have to carry posts like Ye’s if the Texas law goes into effect.
Musk did not respond to a request for comment on Yes’s tweet or whether he would allow it as Twitter’s owner. When Ye reappeared on Twitter and criticized Instagram for locking his account, Musk had replied, “Welcome back to Twitter, my friend!” Musk answered again On Monday night, he tweeted that he had spoken with Ye and “expressed my concern about his recent tweet, which I believe he took to heart.”
The Texas law says social media companies cannot “censor a user” based on their “viewpoint” — language that legal experts said could be interpreted to prohibit them from taking down anti-Semitic tweets. However, the measure includes an exception if the material “directly encourages criminal activity or consists of specific threats of violence directed at an individual or group” based on characteristics including their race or religion.
It’s unclear whether Yes’s tweet would meet the criteria for material that can be taken down under the law, researchers said. Taking down his Instagram post would likely be even harder to justify, as it was less overtly threatening.
Instagram and Twitter declined to say what specific rules Ye’s post violated, a rare omission for a high-profile case.
Tech companies play out response to Texas social media law
Platforms are famously divided in their response after Trump wrote in response to a wave of racial justice protests, “When the looting starts, the shooting starts.” Twitter restricted the tweet under its rules against “glorification of violence,” while Facebook stood by and applauded and left the comments. Neither company said the comments violated their rules against threats of violence or incitement, despite calls from civil rights groups to ban him on those grounds.
The uncertainty over whether a vague but threatening anti-Semitic post would be protected under the Texas law could prompt platforms to play it safe and leave it up, fearing legal repercussions if they took it down. Legal experts have warned that the dynamic could have a chilling effect on corporate moderation efforts and lead to a proliferation of hate speech.
Tech trade groups representing Twitter and other social media companies are challenging the constitutionality of the Texas law in part on these grounds.
Florida, meanwhile, has asked the Supreme Court to review whether states can regulate tech companies’ content moderation practices, after its own law prohibiting them from censoring political candidates or the media was largely struck down by an appeals court as unconstitutional. Many other states have similar laws in the works, pending the outcome of the legal battles over the Texas and Florida laws.
“It illustrates the incredible difficulty of knowing what to even do as a platform operating in Texas or in Florida,” said Daphne Keller, who directs Stanford University’s program on platform regulation. “The safest thing to do is to leave it, and that may be what the law really requires.”