Musk’s patents are not enough to be protected under the First Amendment

Musk’s patents are not enough to be protected under the First Amendment

Op-Ed: How Elon Musk’s plans for Twitter could threaten free speech

Elon Musk’s plans to launch a satellite company and electric car venture all while operating a Twitter account have sparked debate about whether Musk’s ideas amount to free speech. On Monday, Twitter Chief Security Officer Aneesh Chopra posted a statement announcing that Musk’s company, SolarCity, has applied for a patent to protect their technology, and Musk has since responded to the tweet in an open letter in which he defends the patent. As the story broke over the weekend, there was a flurry of tweets and blog posts from people using the hashtag #FreeTheTweet to attack Musk’s plans.

The basic argument is that Musk has no right to patent anything that his supporters say goes against the First Amendment. Many have pointed to a 1978 Supreme Court decision which said the government can’t copyright ideas, and argued that that means that all ideas are not entitled to protection under the Constitution’s First Amendment. This argument has been expanded upon over the years, and even more so these days, when the Supreme Court has repeatedly declined to extend the First Amendment’s protections to political ideas. But even if the Court were to take up the issue, it’s far from certain that Musk would prevail.

The key difference in the 1978 ruling was the word “comprehensive”. The court said that while ideas are generally not protected by the First Amendment, they can be when they’re “sufficiently comprehensive as to constitute the basic substance of a document.” As far as this patent for a low-orbiting solar power satellite is concerned, the court has said that an idea is not enough to be protected under the First Amendment, unless it’s the “basic substance” of a document.

Musk has already filed two patents. The first in 2009 for the rocket design that made it to orbit, and then for the motor and thrusters used on that rocket. The current SolarCity

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