Kanye’s anti-Semitic tweet could be a foretaste of social media’s future


“It’s a disgusting tweet, but there’s no doubt it’s protected by the First Amendment.”

Kanye West arrives at the Vanity Fair Oscar Party on February 9, 2020 in Beverly Hills, California. Evan Agostini / Invision / AP, Phil

Rapper Ye, formerly Kanye West, sent an Instagram post Friday suggesting musician Sean “Diddy” Combs was controlled by Jews — a common anti-Semitic trope. Within hours, Instagram had removed the post and locked his account.

That sent Ye to Twitter, where he was public welcome back from Elon Musk, who may soon take over ownership of the company. Within hours, however, Ye had sent out a separate anti-Semitic tweet that he would go “death con 3 On JEWISH PEOPLE.” Twitter, like Instagram, was quick to block the post and lock his account.

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 seeking to limit content moderation and Elon Musk’s determination to loosen Twitter’s policies, posts like Ye’s may soon become more prevalent online.

ONE law passed by Texas last year, which could become a model for others Republican-led states if approved 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 much riskier for social media companies like Meta, which owns Instagram, and Twitter to moderate even openly 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 create a forum for legal speech of all kinds. “If citizens want something banned, pass a law to do it, 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 doubt it’s protected by the First Amendment,” said Jameel Jaffer, executive director of the Knight First Amendment Institute.

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 remained 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. They have efforts at times drawn setback from prominent conservatives, from former President Donald Trump to Texas Gov. Greg Abbott to Musk, who argues 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 be required 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 concerns 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 incites 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 probably be even harder to justify since it was less overtly threatening.

Instagram and Twitter declined to say which specific rules Ye’s post violated, a rare omission for a high-profile case.

Platforme famous split in their responses after Trump wrote in response to a wave of racial justice protests: “When the looting starts, the shooting starts.” Twitter limited the tweet under its rules against “glorifying violence”, while Facebook stood by and let the remarks stand. Neither company said the remarks violated their rules against threats of violence or incitement, despite calls from civil rights groups to ban him on those grounds.

Uncertainty over whether a vague but threatening anti-Semitic post would be protected under Texas law could prompt platforms to play it safe and let it sit, fearing legal ramifications 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 this basis.

Florida, meanwhile, has asked the Supreme Court to review whether states can regulate tech companies’ content moderation practices after its own law barring them from censoring political candidates or the media was largely struck down by an appeals court as unconstitutional. Several other states have similar laws in the pipeline, pending the outcome of the legal battles over the Texas and Florida laws.

“It illustrates the incredible difficulty of even knowing what to do as a platform operating in Texas or in Florida,” said Daphne Keller, who directs Stanford University’s Program for Platform Regulation. “The safest thing to do is to leave it alone, and that may be what the law really requires.”

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