[Thomas] noted the oddness of the concept that a public official’s Twitter feed (i.e., Trump’s tweets) might be considered a “government forum” when interacting with the public, but “a private company has unrestricted authority to do away with it.”
Justice Clarence Thomas this morning suggested that the Supreme Court is on a collision course with online platforms like Twitter and search engines like Google about how much power companies have to decide who may speak.
The context was a unanimous decision by the Supreme Court to order the dismissal of a lawsuit by the Knight First Amendment Institute against former President Donald Trump over whether Trump was unconstitutionally censoring people when he blocked them from tweeting at him. Now that Trump is no longer the president and has been banned from Twitter, the Supreme Court determined the case to be moot.
Thomas, concurring with the decision, decided to write separately to raise questions about the power of Twitter to eject Trump from the platform.
He noted the oddness of the concept that a public official’s Twitter feed might be considered a “government forum” when interacting with the public, but “a private company has unrestricted authority to do away with it.”
Thomas, it seems, is raising points similar to those of some conservative politicians. He believes that there may be something wrong, possibly even unconstitutional, if a private online platform can boot people off or delete comments it objects to. He writes:
Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. 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 raises the question of whether some of these platforms might be considered by the courts to be “common carriers,” utilities like phone lines that serve the public interest. If the courts conclude that they are, then it would be legal, and not necessarily a violation of the First Amendment, for the government to put restrictions on the ability to prohibit people from using the platform.
SAVAGE HAS BEEN SAYING THIS FOR YEARS! Regulate them as a utility!
This precedent is potentially relevant due to the existence of Section 230 of the Communications Decency Act of 1996, which specifies that websites and online platforms have the power to moderate and remove speech they find offensive, even if said speech is protected by the First Amendment. Section 230 is under attack by politicians who want to either force social media platforms to censor content the politicians don’t like or, alternatively, force platforms to host content the social media companies themselves don’t like.
Volokh responded to Thomas’ concurrence this morning by suggesting that Thomas isn’t necessarily calling for tech platforms to be treated as common carriers, but he is noting that it seems like the Supreme Court is going to eventually have to weigh in on these complexities.