After the Supreme Court dismissed a lawsuit over Donald Trump’s Twitter account, Justice Clarence Thomas promised the power social media platforms have over speech will soon need to be legally addressed.
He stated, social media business might not have a “First Modification” right to control on the internet speech.
“Usual service providers” and also “locations of public lodging” is what he calls Twitter, Facebook and other social media platforms that made use of to enforce their political beliefs on Americans.
The Supreme Court once again takes no action on Dobbs, the challenge to Mississippi’s 15-week abortion ban, or the pending gun cases. It takes up one habeas case, Brown v. Davenport. Orders: https://t.co/2zx7nCtIAz
— Mark Joseph Stern (@mjs_DC) April 5, 2021
On Monday, the Supreme Court tossed an appeal back against a lower court ruling that Trump’s account was a public forum and he could therefore not individually block critics. This is after the former president left the office and deprived of access to his Twitter account.
In a 12-page opinion, however, Justice Clarence Thomas used the opportunity to point out legal issues he sees in the level of power social media companies currently hold.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is control of so much speech in the hands of a few private parties,” he wrote, warning that “we will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
Thomas specifically targeted Facebook CEO Mark Zuckerberg and Google co-founders Larry Page and Sergey Brin for their massive decision-making power in deciding what speech does and doesn’t belong on their platforms.
“Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two controls Google (Larry Page and Sergey Brin),” Thomas wrote.
Social media companies currently hold the power to take down posts or suspend or terminate accounts they deem as violating their rules, but there has been a recent push to declare the companies ‘common carriers’ that must allow anyone on their platforms, regardless of views, especially if certain government accounts are public forums and release vital and sometimes emergency information.
“It seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” Thomas argued, referring to Trump’s account and noting that Twitter had already exercised its authority “to do exactly that.”
While the Second Circuit Court of Appeals had previously ruled that Trump blocking users was a violation of the First Amendment, since his account is a public forum, Thomas pushed back and argued that social media companies like Twitter still have the right to block users from commenting on certain posts made by the former president if they decide the post needs to be restricted.
“The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him,” Thomas argued. “But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms.”
Thomas’ arguments have predictably split opinion, with conservatives critical of social media companies praising the judge for recognizing that platforms should be held accountable, while more liberal critics have mostly dismissed his opinion as defending fellow conservatives.
Clarence Thomas is inviting Congress to ban social media companies from engaging in content moderation by stripping them of their own First Amendment rights and transforming them, for legal purposes, into common carriers or public accommodations.
You know the conservatives who have been arguing—unsuccessfully so far—that social media companies are so powerful that Congress can essentially override their own First Amendment rights and force them to host certain speech on their platforms? Thomas just endorsed that argument.
Thomas cites arguments that Section 230, which provides immunity to platforms for third-party content, *violates the First Amendment.
Legal scholars often talk about how fringe constitutional arguments go from “off the wall” to “on the wall.” Clarence Thomas just took a huge step toward moving arguments against social media companies’ right to engage in content modification “on the wall”—into the mainstream.
I am confident that Clarence Thomas’ rallying cry for legislation overriding social media companies’ First Amendment rights and forcing them to host speech is *entirely* about right-wing fears that Twitter, Facebook, etc. are censoring conservative speech.
In other news, Gorsuch, joined by Alito, wants to expand employers’ obligation to grant religious accommodations to workers under Title VII. Kavanaugh and Thomas have suggested they support this move, as well.
Thomas’ position appears to be that corporations have a First Amendment right to spend an unlimited amount of money influencing elections—free of disclosure requirements—but no First Amendment right to disassociate with speech they do not like. Extraordinary.