But while some lawyers indicated asking Musk to curtail his tweeting might raise First Amendment issues, it’s not entirely clear the First Amendment would protect Musk’s Twitter presence. A judge may have control over some of Musk’s speech because he’s an officer of a publicly traded company, said Ken White, a former US attorney and attorney at Brown White & Osborn LLP.
“The SEC can put fairly strict limits on a publicly traded company’s communications to prohibit and punish fraud and comply with securities rules,” he said in an email. These communications are “commercial speech,” which has less First Amendment protection than whatever Musk might say in his capacity as, you know, a human. “The exact contours of the SEC’s power in the face of a First Amendment challenge aren’t completely clear,” White wrote.
That might mean that a judge could make Musk delete his Twitter account or at least threaten to remove him from the CEO role unless he stops tweeting, on the grounds that the previous measure in the settlement didn’t work. But, says White, if Musk steps down from Tesla, the judge can’t stop him from tweeting.