In a Supreme Court decision Monday, Justice Clarence Thomas suggested that social media companies should be regulated, calling them “common carriers” and “places of public accommodation.”
The Thomas concurrence regarding Big Tech has everything:
1) legitimizing the threat of concentrated corporate power;
2) Google gatekeeping info for 90% of the world;
3) gov't outsourcing censorship;
4) justifications for common carrier regulation
— Rachel Bovard (@rachelbovard) April 5, 2021
The Court on Monday dismissed a case over whether former President Donald Trump had the right to block trolls on Twitter, after a lower court had ruled against him.
SCOTUS deemed the question moot since Trump was permanently suspended from Twitter in January when he left office.
The Second Circuit Court of Appeals had ruled that it was unconstitutional for him to block critics, deeming his personal Twitter account to be a protected public forum.
Justice Thomas agreed with the decision to dismiss the case, noting that it “seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.”
“Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents’ complaint of stifled speech,” Thomas pointed out, stating that “[w]hether governmental use of private space implicates the First Amendment often depends on the government’s control over that space.”
Thomas stressed in his concurrence that Big Tech monopolies have grown so powerful they are the ones trampling on the First Amendment.
“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” Thomas wrote. “The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet—and users rarely do— Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Grind, Schechner, McMillan, & West, How Google Interferes With Its Search Algorithms and Changes Your Results, Wall Street Journal, Nov. 15, 2019. Facebook and Twitter can greatly narrow a person’s information flow through similar means. And, as the distributor of the clear majority of e-books and about half of all physical books,4 Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.
— Josh Hawley (@HawleyMO) April 5, 2021
The conservative Justice warned that the Supreme Court “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
He also cited arguments made by conservative commentators that Section 230, which provides immunity to platforms for third-party content, may violate the First Amendment.
Threats directed at digital platforms can be especially problematic in the light of 47 U. S. C. §230, which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content. This immunity eliminates the biggest deterrent—a private lawsuit—against caving to an unconstitutional government threat. For similar reasons, some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from
Thomas laid out the justifications for regulating Big Tech platforms like Facebook and Twitter.
“If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude. Historically, at least two legal doctrines limited a company’s right to exclude,” Thomas wrote. “First, our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers.”
Thomas stressed in his opinion that it is “unprecedented” to have “control of so much speech in the hands of a few private parties.”