Free Nick Fuentes

How the Commentator’s Latest Twitter Ban Starkly Underscores the Wide Gap Between Elon Musk’s Aspirations for the Platform and Reality

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Nick Fuentes recently hosted a Twitter Space from a pseudonymous account before an impressive audience of well over 3,000 listeners. The comeback, which marked the second of such attempts by the conservative commentator this year, was significant for not just the size of the listenership and attention it generated with basically no advanced notice, but moreover, by how quickly Twitter’s censures rushed to silence the 24-year-old provocateur, whose account was suspended as the space was still going on.

The Fuentes incident – and how it was managed by Twitter’s operators – demonstrates the still-rigid boundaries along which speech is regulated on a platform that, at least under Elon Musk, has otherwise made repeated overtures to upholding the First Amendment as its guiding principle. The response to Fuentes’ short-lived comeback came just a day after Musk dressed down a BBC reporter for, among other things, being hostile to free speech and specifically criticism over how Twitter under Musk’s leadership has made it a priority, at least in principle, to uphold the free exchange of ideas. No clearer showing of the discrepancy between aspiration and reality, however, was observed than in these two incidents. That they occurred within just days of each starkly highlights the lingering and deep-seated problems that have prevented Twitter from realizing its guiding principle.

First, it must be said that Twitter has objectively improved in the category of free speech under Musk’s stewardship. Notably, the accounts of once banned high-profile users such as Donald Trump, Andrew Tate, Roger Stone, and Laura Loomer have been reinstated with apparent impunity to use the platform as they please. But for every Trump and Tate, there remains the still banned Fuentes and Ye.  

Even more tragic are the potentially thousands of smaller accounts which remain censured, without apparent rhyme or reason, who lack the massive followings of the higher profile cases, thus making the appeals process – to the extent any real process exists – even more difficult. Also, many of these accounts go under pseudonyms, meaning the possibility of fighting their bans is further complicated by the added risk of self-doxing. Often, lesser-known accounts get unbanned only if they can mobilize a coalition of allies on the platform, who in their collective efforts, raise sufficient awareness to highlight the censored user to a person with influence or directly allied to Musk. Otherwise, users who lack those contacts – or who may be unwilling or unable to generate a coalition of support to fight on their behalf – risk digital exile, perhaps for months or years on end, which carries tremendous personal, reputational, and financial costs.

Which brings us to the constitutional problem. Musk has stated over and again that he aspires to track the First Amendment’s free speech clause as closely as possible for the platform. Although Musk may be many things, he is no constitutional expert, and, judging by his recent actions, certainly no authority on the First Amendment. Whatever aspirations he might have for free speech, while undoubtedly well-intentioned, they mean nothing if not backed by real action. The First Amendment, as interpreted by the Supreme Court, licenses virtually all speech, excepting a few, well-defined carve outs, such as threats that pose a clear and imminent danger to an individual or the public.

Within the context of social media, those carve outs would ideally be isolated to individual tweets, and not apply – to the extent that they are relevant at all – to blanket bans, save in the most extraordinary of cases. Even in those extraordinary cases, however, where such a blanket ban may be deemed constitutionally warranted, careful attention must be given to constitutional principles that are intended to operate in tandem with the Constitution’s other protections – importantly, fundamental rights that might be jeopardized by a due process violation.

In the case of Twitter, to the extent that accounts are banned indiscriminately and without sufficient notice – delineating specific reasons as to why a particular tweet violates Twitter’s speech policy, which, in its ideal formulation, would axiomatically track the First Amendment – should be considered a problem of the highest order. An ideal speech policy would also include an opportunity for an appeal for every censored account, replete with crystal clear procedures for appealing that are easily understandable, responsive, and transparent to the community at large. Never should a user be forced to have to wait for weeks without a response from a human being, which is not just unprofessional from a business perspective, but also a miscarriage of justice that also equates to a fundamental constitutional rights violation.

Twitter has yet to devise precise guidelines, which should have been the main priority as soon as Musk became CEO, to describe what its policy for speech is, how it aspires to track the constitutional requirements, and how it differs from the obviously unconstitutional procedures under the old regime of Jack Dorsey, Parag Agrawal, and Vijaya Gadde, et al. A large part of the problem as well involves appointing competent people to fill in the vacancies left by the aforementioned group. 

Granted, Musk critics should not overlook the fact that to the extent Twitter has fallen short of its promise of free speech, it may be attributed to Musk having alone taken on a significant degree of the management burden. Musk is currently performing multiple roles that are likely beyond his capacities, alongside managing, of course, several other multi-billion-dollar companies at once. Because Musk has a significant amount on his plate, he may not be able to exercise the degree of granular attention to the erroneous decisions made by those rogue operatives still working for Twitter, likely holdovers from the old regime, who can plot behind the scenes to silence those voices they dislike with relative impunity.

Nevertheless, the status quo must be changed. Twitter will never be a free speech platform so long as it continues to level indiscriminate bans against users – and certainly bans without notice or explicit reasons why they are given. If the Constitution is truly the standard, such bans must always be restricted by time, place, and manner – which, in the digital context, would mean by tweet. The general framework should be that all speech is permitted. To the extent exceptions do arise in extraordinary circumstances, those exceptions must be severely restricted on a tweet-by-tweet basis. Again, those exceptions must be transparent to the community, giving advance notice to all when they apply and for what violations. In addition, those exceptions should be drawn from constitutional – i.e., legal – authorities to justify their existence. Ideally, the community would also be allowed to comment on these guidelines, in order to course correct where those in charge of devising and enacting Twitter’s free speech policies might have fallen short. So too should be transparent the people tasked with implementing such policies, whose names, twitter handles, and legal and technological acumen should be on display for the community to appraise whether they can be entrusted as competent authorities. In summary, the key and operative word here is transparency.

Those who make the decision to ban an account should always open themselves up to the community. An ideal way to do this would be through a Twitter space, where they can answer questions from the public to explain the rationale behind their decision. This is especially true for high-profile censures of individuals in the league of Nick Fuentes and Ye. Ideally, the censured would be permitted to join the space as well and plead their case to the public.

But again, the goal should be maximizing speech – which irrefutably is the goal of the First Amendment’s speech clause. Exceptions to the rule should be few and far between; rarely, if ever, should full blanket bans of the sort leveled against Fuentes, Ye, and thousands of other anons, be part of any policy. In an ideal world, only ever would tweets, not whole accounts, be subject to censorship – and that censorship would always be tailored to very specific, well-defined situations, available for comment and debate by the community at large. It is the latter policy that would most faithfully follow both the letter and spirit of the First Amendment’s speech clause and constitutional due process. These are the guardrails that should always be upheld, no matter the cost, in order to keep the light of freedom alive in our increasingly rigid digital world.

Paul Ingrassia is a two-time Claremont Fellow: he was the Jack Roth Charitable Foundation John Marshall Fellow for 2022 and a Publius Fellow in 2020. Mr. Ingrassia graduated from Cornell Law School in 2022 and is a member of the New York Young Republican Club. His Twitter handle is: @PaulIngrassia.