Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech'

Apr 5, 2021
Originally published on April 8, 2021 5:55 pm

The Supreme Court on Monday dismissed a lower court ruling that former President Donald Trump violated the First Amendment rights of critics he blocked on Twitter.

Lawyers for those Trump blocked on Twitter argued that the former president's Twitter account functioned as an official source of information about the government, leading a federal appeals court to rule that Trump's blocking amounted to illegally silencing their viewpoints.

But Trump is no longer in office, and Twitter has permanently banned him from its platform over glorifying violence. So the lower court's ruling from the 2nd U.S. Circuit Court of Appeals should be tossed, the Supreme Court ruled, instructing the court to dismiss the case as "moot," or no longer active.

While the case can no longer be cited as precedent, other courts have held that an elected official's social media accounts can be treated as public forums. And so the dismissal "is unlikely to affect the development of the law," said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, which sued Trump over his blocking of critics.

"I think public officials are and should be on notice that if they block people from their social media accounts on the basis of viewpoint, they are violating the First Amendment," Jaffer told NPR.

The decision from the high court did not surprise court watchers, but a concurrence in the ruling from Justice Clarence Thomas has drawn intense attention in technology circles.

In it, Thomas took broad aim at social media networks, attacking Section 230 of the Communications Decency Act, the landmark law that protects technology companies from lawsuits and also provides platforms wide latitude in patrolling speech on their sites.

To Thomas, Twitter's ban of Trump exposed the potential abuses of this legal protection, noting how "applying old doctrines to new digital platforms is rarely straightforward."

Thomas went on: "As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. 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," Thomas wrote.

Big Tech companies Facebook and Google, Thomas pointed out, have vast and largely unchecked control over online marketplaces.

"It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail," Thomas wrote. "But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today's digital platforms, nothing is."

In Thomas' view, social media companies are "sufficiently akin" to a common carrier, like a public utility, such as a telephone company, and should be "regulated in this manner," he wrote, suggesting that social networks should be federally regulated in the same way that, say, a phone company cannot prevent a person from making a call.

Several legal experts told NPR that this reading of common carrier law represents a fringe view popular among partisan conservatives but not shared by federal regulatory agencies and the Supreme Court's own precedents.

No other justice joined Thomas' concurrence.

The remarks from Thomas are not the first time he has written that Big Tech should be reined in. He wrote in October 2020 that it "behooves" the justices to narrow the scope of Section 230, the law shielding tech companies from litigation.

Harvard Law School's Evelyn Douek argued that Twitter's booting of Trump may just be the action that leads to a stripping of social media platforms' legal protections.

"I've said this repeatedly, but it was terribly short-sighted of liberals to unquestioningly celebrate the unaccountable deplatforming of Trump (not to mention everyone else swept up) as an exercise of private power and cede the point that regulation might actually be beneficial," she tweeted.

Legal scholars of Section 230 greeted Thomas' position on the law dubiously, noting that it is not an indication of how the entire court stands on the matter.

"I'm not sure what to make of how much support Justice Thomas's reading of 230 has among the other eight Justices, particularly because they've denied [certiorari] in a few high-profile 230 cases recently," tweeted lawyer Jeff Kosseff, referring to the Supreme Court's recent decisions not to accept some Section 230 cases. "I do think that Thomas's statement increases the chances that at least two judges on a randomly chosen circuit court panel will rule in favor of must-carry rules for social media platforms," tweeted Kosseff, who wrote a book on Section 230 called The Twenty-Six Words That Created the Internet.

In an interview, Kosseff said lawyers readying cases and state legislatures may be emboldened by Thomas' remarks.

"It is an invitation for plaintiffs' lawyers to bring cases challenging Section 230," he said. "And I would not be surprised if we would start seeing more states passing laws that attempt to regulate content moderation."

Kosseff said any legal analysis of Section 230 that ignores a long history of cases that have upheld platforms' own First Amendment right of policing troubling content would have a hard time surviving judicial scrutiny.

Others applauded Thomas' remarks, including Rachel Bovard, senior director of policy at the Conservative Partnership Institute.

"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," Bovard tweeted.

: 4/04/21

An earlier version of this story misspelled Jeff Kosseff's last name as Kossoff.

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Congress has lately been weighing how much power tech companies should have. A member of the Supreme Court has now spoken. Justice Clarence Thomas yesterday criticized Twitter for banning former President Donald Trump, and he wrote that social media companies should lose decades-old legal protections. Here's NPR's Bobby Allyn.

BOBBY ALLYN, BYLINE: Justice Clarence Thomas' words are ricocheting around Silicon Valley. He wrote that the ability to, quote, "cut off speech" lies most powerfully in the hands of digital platforms. Tech companies' power is a, quote, "glaring concern," he wrote. He says the dominance of companies like Google and Facebook make them more similar to a telephone or railroad company, like a public utility. It shows that at least one Supreme Court justice is open to taking away the tech industry's legal protections.

JEFF KOSSEFF: It is an invitation for plaintiffs' lawyers to bring cases challenging Section 230.

ALLYN: That's legal scholar Jeff Kosseff. He wrote a book called "The Twenty-Six Words That Created The Internet." It's about the tech law Thomas is attacking known as Section 230.

KOSSEFF: I would not be surprised if we would start seeing more states passing laws that attempt to regulate content moderation.

ALLYN: Section 230 is part of a 1996 law that does two things. First, it shields the tech industry from being sued over what people post on the Internet. And secondly, it allows the companies to patrol their own sites.

KOSSEFF: They get rid of a lot of garbage. I mean, there's a lot of stuff we don't see and we're happy that we don't see when we go online.

ALLYN: Kosseff says if social media companies lost that power, the Internet would be overwhelmed with even more garbage than what exists there now. Some lawmakers in Washington want to completely rewrite this law. Thomas' comments were striking because it came in a case that had nothing to do with Section 230. Instead, a lower court found it unconstitutional for former President Trump to block his critics on Twitter. Since Trump is no longer in office and banned on Twitter, the Supreme Court ruled the case is dead (ph). The Knight First Amendment Institute at Columbia University brought the case. Jameel Jaffer with the institute says politicians can still be sued for blocking critics on social media.

JAMEEL JAFFER: So, you know, I think public officials are and should be on notice that if they block people from their social media accounts on the basis of viewpoint, they're violating the First Amendment.

ALLYN: Jaffer says Section 230 is clearly on Thomas' mind. But he also noted that Thomas' opinion was not cosigned by any other conservative justice. Bobby Allyn, NPR News, San Francisco.

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