- The Washington Times - Monday, April 5, 2021

Supreme Court Justice Clarence Thomas put Big Tech on notice Monday, warning that the high court — or even Congress — soon may have to step in and address social media companies’ actions regulating free speech “at any time for any or no reason.”

He made the comments in a concurring opinion in the Supreme Court’s dismissal of a lawsuit questioning Donald Trump’s right, while he was president, to block people on Twitter. The court took the action in a one-paragraph order with no noted dissent because Mr. Trump is no longer president and no longer has a Twitter account. The platform banned him this year.

But Justice Thomas warned that a day of reckoning looms for social media companies.

“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” the conservative jurist 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.”

The appointee of President George H.W. Bush said digital platforms provide for “unprecedented amounts of speech,” but control over that speech is concentrated in the hands of private companies.



“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,” he wrote.

None of the court’s other eight justices joined Justice Thomas’ concurrence. Justices sometimes sign on to others’ writings, though it is not mandatory.

Ilya Shapiro, vice president of the Cato Institute, said whether any of the other justices would join Justice Thomas in advocating for Twitter to be restricted from blocking or censoring speech would depend on the type of case that eventually makes its way to the high court.

Twitter declined to respond to a request for comment from The Washington Times about Justice Thomas or the court’s ruling.

The justices vacated as moot a decision from the 2nd U.S. Circuit Court of Appeals, which sided with people who sued Mr. Trump when he was president. They said Mr. Trump violated the First Amendment when he blocked them from interacting with his account on Twitter.

The appeals court reasoned that Mr. Trump was a government official and his account was a public forum — not under his private control — so critics should be able to view and interact with his account.

The justices dismissed the lawsuit because Mr. Trump left office on Jan. 20.

But Justice Thomas noted that the 2nd Circuit ruling was at odds with Twitter’s total control over discourse, even to the point of barring Mr. Trump from the platform altogether.

“It seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” Justice Thomas wrote. “The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform.

“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors.”

Courts have generally held government officials in violation of First Amendment rights when the government controls the space, but that doesn’t appear to be the issue with social media companies, Justice Thomas wrote.

He noted that Twitter has absolute power to block anyone at any time and suggested that social media companies may need to be treated differently and be required to serve everyone.

He said lawmakers could pass legislation requiring social media companies to abide by public accommodation laws. He referenced telegraphs, which were “bound to serve all customers alike, without discrimination.”

Congress has afforded social media platforms protection from civil liabilities under Section 230 of the Communications Decency Act, giving the companies immunity from lawsuits simply for publishing information of third parties.

Justice Thomas, though, said Congress hasn’t “imposed responsibilities, like nondiscrimination, that would matter here.”

“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,” Justice Thomas wrote.

Eugene Volokh, a law professor and author of the legal blog The Volokh Conspiracy, said Justice Thomas’ opinion explored what could be accomplished through legislation and whether state laws should treat social media platforms as common carriers, such as utility companies.

“That’s an issue the Court will likely have to deal with in coming years,” Mr. Volokh said.

Mike Davis, president of the Internet Accountability Project, said the companies should be treated like common carriers.

“Big Tech monopolists like Google, Amazon, Facebook and Twitter have a different responsibility than other companies: the responsibility to avoid viewpoint discrimination and to protect the free speech rights of its users,” Mr. Davis said. “Just like telegram companies of the past, today’s Big Tech monopolists cannot censor messages, and even users, they don’t like.”

Ryan Anderson, president of the Ethics and Public Policy Center, said the concurrence reminds everyone that even private companies are subject to some legal limitations.

“Repeating the mantra that ‘big business can do whatever it wants’ simply doesn’t cut it,” he said.

Twitter suspended Mr. Trump from the platform indefinitely after the Jan. 6 attack on the U.S. Capitol. At the time, the president had more than 88 million followers.

Republican lawmakers have often threatened to remove legal liability protections from social media companies, saying they silence conservatives.

Rep. Marjorie Taylor Green, Georgia Republican, was targeted by Twitter on Easter Sunday. She said the company said it accidentally suspended her when she posted “He is risen.”

“Everyone knows that’s a LIE, and it was no mistake. Curious if Twitter has ever suspended @LouisFarrakhan by mistake? Or any of his followers that want to kill police?” she said, referencing the Nation of Islam leader.

Other Trump supporters and conservative groups also have been targets of the social media giant.

Project Veritas, a conservative watchdog group that had viral videos showing fraud and wrongdoing within Democratic groups and media organizations, was permanently suspended from the platform, as was pro-Trump lawyer Sidney Powell, who led a number of lawsuits contesting the 2020 election.

Michael Flynn, Mr. Trump’s former national security adviser, was also indefinitely suspended.

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