Supreme Court Justice Clarence Thomas issued a concurrence in a case over former President Donald Trump's Twitter account in which Thomas suggested that social media companies should be regulated like a common carrier, like a telephone company. Patrick Semansky/AP hide caption
Supreme Court Justice Clarence Thomas issued a concurrence in a case over former President Donald Trump's Twitter account in which Thomas suggested that social media companies should be regulated like a common carrier, like a telephone company.
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Court of Appeals should be tossed, the Supreme Court ruled, instructing the court to dismiss the case as "moot," or no longer active.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."
Daphne Keller, former general counsel for Google and now with Stanford Law School, said any legal analysis of Section 230 that ignores a long history of cases that have upheld platforms' First Amendment right of policing troubling content "are either ignorant or intellectually dishonest."
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.
- Floridas ban on bans will test First Amendment rights of social media companies - TechCrunch - May 24th, 2021
- Prince Harry's First Amendment Aversion Is Funny; the Governments That Agree Are Scary - Reason - May 24th, 2021
- Face Masks and the First Amendment - The Wall Street Journal - May 24th, 2021
- First Amendment Confusion | Opinion | Northern Express - northernexpress.com - May 24th, 2021
- The First Amendment and Mask Mandates Reason.com - Reason - May 24th, 2021
- OPINION: Prince Harry, allow me to explain the First Amendment - The Richmond Observer - May 24th, 2021
- Wicker, Hyde-Smith Cosponsor the 'Don't Weaponize the IRS Act' - Senator Roger Wicker - May 24th, 2021
- Opinion: 'Ohio will never bow to totalitarian pressures' - The Columbus Dispatch - May 24th, 2021
- If Courts Cant Agree on Who an Appropriate Person, Is for Notice of Sexual Harassment Under Title IX, How Can We Expect a Student in Crisis to Do So?... - May 24th, 2021
- Franklin Graham Can't Handle Prince Harry's Criticism of the First Amendment - Friendly Atheist - Patheos - May 24th, 2021
- Sharp increase in hate crimes has Mass. legislators looking to tighten laws - Milford Daily News - May 24th, 2021
- Tillis, Colleagues Introduce 'Don't Weaponize the IRS Act' - Thom Tillis - May 24th, 2021
- Washington: Second Amendment Banned in First Amendment Spaces After the Signing of Anti-Gun Measure - NRA ILA - May 16th, 2021
- Citing First Amendment, 4th Circuit reverses conviction for retired Air Force officer's use of N-word - ABA Journal - May 16th, 2021
- Prince Harry Calls The First Amendment 'Bonkers' and He Makes a Good Point - Showbiz Cheat Sheet - May 16th, 2021
- The First Amendment's Role in Broadcast and Online Regulation - Lexology - May 16th, 2021
- The Road Ahead for Net Neutrality and the First Amendment - JD Supra - May 16th, 2021
- Compliance Corner: A Brief Introduction to the History and Theory of Campaign-Finance Law, Part II - InsiderNJ - May 16th, 2021
- New Lawsuit Argues That D.C.'s Ban on Dancing at Weddings Violates the First Amendment - Reason - May 16th, 2021
- Commentary: It's time to revive Fairness Doctrine and expand it - Crain's Detroit Business - May 16th, 2021
- Social And Political Issues And The Workplace Implications For Employers - Employment and HR - United States - Mondaq News Alerts - May 16th, 2021
- Protesters: Changes to the Rockford City Market are meant to stymie their message - Rockford Register Star - May 16th, 2021
- Twitter's lawsuit against Texas Attorney General Ken Paxton tossed by federal judge - The Texas Tribune - May 16th, 2021
- Idaho Press Club objects to the subpoena of journalist Nate Eaton, of East Idaho News - East Idaho News - May 16th, 2021
- Trump, the Facebook Ban, and Who Decides - Bloomberg Law - May 16th, 2021
- First Amendment Versus The Civil Rights Act: A Clash Of Titans - Employment and HR - United States - Mondaq News Alerts - May 3rd, 2021
- Commentary: How to live your First Amendment freedoms - Press Herald - May 3rd, 2021
- Students and First Amendment Week: The Right to Be Loud - BVU The Tack Online - May 3rd, 2021
- The First Amendment and Social Media The Tack Online - BVU The Tack Online - May 3rd, 2021
- Justices Appear Poised to Strike Down California Law in Case with Potential to Allow More Dark Money in Politics - Law & Crime - May 3rd, 2021
- A close call this time, but lawmakers have a bad attitude on openness | Cotterell - Tallahassee Democrat - May 3rd, 2021
- The Two Teds - Episode 3 - The First Amendment - Gibson Dunn - April 19th, 2021
- MyPillow CEO Recruits First Amendment Heavy Hitters to Fight Dominion - The Daily Beast - April 19th, 2021
- Some LGBTQ groups and leaders are taking different sides in First Amendment case - Out In Jersey - April 19th, 2021
- Tenth Circuit Grants Qualified Immunity to Police Who Knowingly Violated the First Amendment - Cato Institute - April 19th, 2021
- Spencer and Volokh Discuss the First Amendment and Content Moderation on Social Media Platforms - UMass Dartmouth - April 19th, 2021
- Lecturers speak on the importance of the First Amendment in the civil rights movement - Iowa State Daily - April 19th, 2021
- Protect the police or the First Amendment? | TheHill - The Hill - April 19th, 2021
- Smartmatic Calls Bulls--t on Foxs First Amendment Argument - Vanity Fair - April 19th, 2021
- Letter: Equality Act targets First Amendment rights | Letters to the Editor | readingeagle.com - Reading Eagle - April 19th, 2021
- MLive/Kalamazoo Gazettes Brad Devereaux wins First Amendment Award for exposing closed-door meetings - MLive.com - April 19th, 2021
- The IHRA Definition of Anti-Semitism Puts Jews on the Wrong Side of the First Amendment - Jewish Week - April 19th, 2021
- Project Veritas Gonna Sue Twitter For Defamatory Section 230 Censorship And First Amendment Assault Or Something - Above the Law - April 19th, 2021
- Letter: On God and the First Amendment | Communities | mainstreet-nashville.com - Main Street Nashville - April 19th, 2021
- Justice Thomas's Misguided Concurrence on Platform Regulation - Lawfare - April 19th, 2021
- 'Hate has no home here': City of Appleton puts up sign countering sign with homophobic slur - Post-Crescent - April 19th, 2021
- Prohibited prayer and the limits of government authority even in a pandemic | Sullum - Chicago Sun-Times - April 19th, 2021
- Clarence Thomas plays a poor devils advocate in floating First Amendment limits for tech companies - TechCrunch - April 6th, 2021
- First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF - April 6th, 2021
- "Fake News" and the First Amendment - University of Dayton - News Home - April 6th, 2021
- Bar owners went beyond First Amendment rights with their 'raised voices, interrupting,' AG argues - Cambridge Day - April 6th, 2021
- Clarence Thomas blasts Section 230, wants common-carrier rules on Twitter - Ars Technica - April 6th, 2021
- Drones (and the First Amendment) take on regulatory overreach in North Carolina - Chatham Journal Weekly - April 6th, 2021
- The university response to offensive speech often reflects a feeble commitment to diversity, equity and inclusion - Poynter - April 6th, 2021
- Online event examines the relationship between free speech and firearms - Nevada Today - April 6th, 2021
- Official Website for the Governor of Maryland - maryland.gov - April 6th, 2021
- Opinion: Remembering the Core Four Pillars of Journalism Amid a Pandemic - Times of San Diego - April 6th, 2021
- Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police - EFF - April 2nd, 2021
- Is There a First Amendment Right to Tweet? - JSTOR Daily - April 2nd, 2021
- Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome - April 2nd, 2021
- The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org - April 2nd, 2021
- Why It's So Hard to Prosecute White Extremists - The Marshall Project - April 2nd, 2021
- Loeb School announces free spring classes and writing workshops - The Union Leader - April 2nd, 2021
- Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt - March 31st, 2021
- Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security - March 31st, 2021
- The First Amendment: Rarely Popular, Always Necessary - The Dispatch - March 31st, 2021
- The First Amendment: What It Is & What It Isn't - WSHU - March 31st, 2021
- Drawing a Line Between Internet Trolls and the First Amendment - Government Technology - March 31st, 2021
- BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology - March 31st, 2021
- Courts: Bystanders have right to record police under the First Amendment - Newsday - March 31st, 2021
- RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press - March 31st, 2021
- Pronouns in the University Classroom & the First Amendment - Reason - March 31st, 2021
- Matt Taibbi: A Biden appointee's troubling views on the First Amendment - National Post - March 31st, 2021
- Pronouns and the Philosophy Professor - The Wall Street Journal - March 31st, 2021
- Letters to the editor | Opinion | journalpatriot.com - Wilkes Journal Patriot - March 31st, 2021
- Jane Briggs-Bunting, who championed the 1st Amendment, dies at 70 - Detroit Free Press - March 31st, 2021
- Was a Trump critic's 1st Amendment violated by Yale? We're about to find out. - MSNBC - March 31st, 2021
- The Cyberlaw Podcast: Can Editorial Middleware Cut the Power of the Big Platforms? - Lawfare - March 31st, 2021
- Judge In Chauvin Trial Rules That Underage Witnesses Can Testify - NPR - March 31st, 2021
- An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots - Just Security - March 31st, 2021