Justice Thomas, Social Media, and Big Tech

April 15, 2021

Are social-media platforms more akin to telephone carriers or to conference halls? SCOTUS Justice Clarence Thomas likens them to the former, we learn from “Justice Thomas Argues for Making Facebook, Twitter and Google Utilities” at Protocol. On the other hand, TechDirt makes a solid, though snarky, argument that social-media companies are more like venues that rent out conference space in, “Justice Thomas Goes Weird Again; Suggests Twitter Can’t Moderate & Section 230 Violates 1st Amendment.”

On April 5th, the Supreme Court vacated a lower court decision which had ruled President Trump could not block Twitter followers, saying the issue is moot now that 45 is out of office. The lower court’s decision rests on the idea that a government official’s post and any discission around it constitute a public forum. As such, the official may not block comments with which they disagree. Justice Thomas took the occasion to muse upon the nature of social media platforms. Protocol reporter Issie Lapowsky writes:

“Thomas argues that some digital platforms are ‘sufficiently akin’ to common carriers like telephone companies. … Thomas argues that while private companies aren’t subject to the First Amendment, common carriers are unique to other private businesses in that they do not have the ‘right to exclude.’ Thomas suggests that large tech platforms with substantial market power should be bound by the same restrictions.”

Such restrictions would make it very hard for platforms to do anything about fake news, hate speech, and other objectionable content. TechDirt’s Mike Masnick, however, describes why Justice Thomas’s perspective is flawed. He writes:

“A bunch of very confused and clueless people have (incorrectly) taken to arguing that this somehow means that Twitter itself is a ‘public forum’ and cannot moderate content. That has always been very, very wrong. The courts were clear that they were only talking about the space beneath a public official’s statements. The simplest way to think of it is this: If the government rents out an event hall to let the President give a speech, it cannot engage in viewpoint discrimination in blocking people from coming into the hall to hear the speech. That does not mean the event hall itself is now permanently a public forum, or that the event hall owners cannot block people they have banned from their property from attending the speech, or any other events.”

Justice Thomas also hinted that Section 230 may be unconstitutional, a viewpoint Masnick insists demonstrates a misunderstanding of the law. See the TechDirt piece for more of Masnick’s strong opinions and reasoning on the subject.

Will Big Tech be able to influence Justice Thomas’ view? Maybe.

Cynthia Murrell, April 15, 2021


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