Another interesting and provocative morning over at the SCOTUS. The court started out hearing a case regarding the issue whether Donald Trump could legally block his legions of detractors on Twitter or if that was a violation of free speech rights protected under the constitution. That issue was declared moot, because Trump no longer has a Twitter account, and the appellate court opinion that Trump had violated the First Amendment by blocking his critics was thrown out by the higher court. However, the decision did provide a chance for judicial commentary on the topic of free speech and constitutional protections in the context of social media platforms and Clarence Thomas jumped right into the middle of that.
So now it looks like the issue is whether the First Amendment is about power or government suppression.
Here's Clarence Thomas looking to less-than-subtlety reframe the First Amendment into being about power rather than government censorship. pic.twitter.com/TMqW6WHGFR
— Eriq Gardner (@eriqgardner) April 5, 2021
Now where this goes, is the idea that Twitter and other social media platforms could be interpreted as common carriers and therefore subject to government control.
?Clarence Thomas suggests that social media companies may NOT have a First Amendment right to regulate speech on their platforms, analogizing them to "common carriers" and "places of public accommodation." https://t.co/2zx7nCtIAz pic.twitter.com/ZleTE1aI0S
— Mark Joseph Stern (@mjs_DC) April 5, 2021
You know the conservatives who have been arguing—unsuccessfully so far—that social media companies are so powerful that Congress can essentially override their own First Amendment rights and force them to host certain speech on their platforms? Thomas just endorsed that argument. pic.twitter.com/QHhLpZwEF7
— Mark Joseph Stern (@mjs_DC) April 5, 2021
Legal scholars often talk about how fringe constitutional arguments go from "off the wall" to "on the wall." Clarence Thomas just took a huge step toward moving arguments against social media companies' right to engage in content modification "on the wall"—into the mainstream.
— Mark Joseph Stern (@mjs_DC) April 5, 2021
In other news, Gorsuch, joined by Alito, wants to expand employers' obligation to grant religious accommodations to workers under Title VII. Kavanaugh and Thomas have suggested they support this move, as well. https://t.co/2zx7nCtIAz pic.twitter.com/DPbjT6Sn4V
— Mark Joseph Stern (@mjs_DC) April 5, 2021
What a SCOTUS morning, and it's not even 10 am! I'm starting a separate thread for impending opinion(s) because this one got too damn long!
— Mark Joseph Stern (@mjs_DC) April 5, 2021
A private platform is a private platform until it becomes characterized as a common carrier and then the government can control. This is going to be some interesting dialogue in the years ahead.
So according to Clarence Thomas, whatever party is in power can suppress expression on any social media platform that is saying what they don’t want people to hear. Sounds like China and Russia to me! I guess he’s a fan of those regimes.
And not merely “suppress expression on any social media platform” but also COMPEL the platforms to become propaganda outlets.
I wonder if Mr Thomas is aware that his (woefully ignorant) opinion could just as easily now be applied to the likes of Fox “News” and “News”Max and all the other right-wing propaganda outlets? You CANNOT legally treat Twitter and Facebook differently from a cable network that also uses those social networks. For the past quarter-century, Fox “News” has been declaring itself exempt from numerous *broadcast* standards as it was a *cable* network (and the courts have essentially upheld the distinction so that cable networks don’t have to provide necessary public services–unlike broadcast networks which mainly have local affiliate stations). But, if the right-wing is going to decide that social media platforms must be regulated (even though they’re private companies–so much for that right-wing “pro-business” attitude), then the left needs to press for government regulation of right-wing broadcast programmers.