But a conservative-led movement to rein in what some see as “censorship” by Silicon Valley giants is poised to alter how they approach such decisions. Between a growing field of state laws that seek to restrict content moderation and Elon Musk’s determination to loosen Twitter’s policies, posts such as Ye’s could soon become more prevalent online.
A law passed by Texas last year, which could become a model for other Republican-led states if upheld by the courts, prohibits large 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 much riskier for social media companies such as Meta, which owns Instagram, and Twitter to moderate even blatantly antisemitic posts such as Ye’s.
And Musk has said that one of his goals for Twitter, should he complete a $44 billion deal to purchase the company and take it private, is to provide a forum for legal speech of all kinds. “If the citizens want something banned, then pass a law to do so, otherwise it should be allowed,” he tweeted in May.
By that standard, Ye’s tweet would likely stand, at least in the United States, where hate speech is not against the law. “It’s a vile tweet, but there’s no question it’s protected by the First Amendment,” said Jameel Jaffer, executive director of the Knight First Amendment Institute.
Offensive posts are nothing new on social media, of course. But the largest 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 restrict posts deemed threatening or hateful toward other users or groups of people. Those efforts have at times drawn backlash from prominent conservatives, from former president Donald Trump to Texas Gov. Greg Abbott to Musk, who argue 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 be required to carry posts like Ye’s if the Texas law takes effect.
Musk did not respond to a request for comment on Ye’s tweet or whether he would allow it as Twitter’s owner. When Ye resurfaced on Twitter criticizing Instagram for locking his account, Musk replied, “Welcome back to Twitter, my friend!”
The Texas law states that 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 antisemitic tweets. The measure includes an exception, however, if the material “directly incites criminal activity or consists of specific threats of violence targeted against a person or group” based on characteristics including their race or religion.
It’s unclear whether Ye’s tweet would meet the criteria for material that can be taken down under the law, scholars said. Taking down his Instagram post would likely be even harder to justify, since it was less overtly threatening.
Instagram and Twitter declined to say which specific rules Ye’s posts violated, a rare omission for a high-profile case.
Platforms famously split in their response after Trump posted in response to a wave of racial justice protests, “When the looting starts, the shooting starts.” Twitter restricted the tweet under its rules against “glorifying violence,” while Facebook stood pat and left the remarks up. Neither company said the remarks violated their rules against threats of violence or incitement, despite calls by civil rights groups to ban him on those grounds.
The uncertainty around whether a vague-but-threatening antisemitic 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 companies’ 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 those 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 media outlets was largely struck down by an appeals court as unconstitutional. Numerous other states have similar laws in the works, pending the outcome of the legal battles over Texas and Florida’s laws.
“It illustrates the incredible difficulty of knowing what you’re supposed to do at all as a platform operating in Texas or in Florida,” said Daphne Keller, who directs Stanford University’s Program on Platform Regulation. “Certainly the safest thing to do is to leave it up, and it might be that that’s what the law truly requires.”
