Justice Thomas Raises First Amendment and Legislative Issues of Regulation of ‘Private’ Social Media Giants

“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,” wrote U.S. Supreme Court Justice Clarence Thomas on April 5 in a concurring opinion.

Thomas was commenting on an earlier circuit court ruling which found that then-President Donald Trump could not block people on Twitter, because the comment threads on his tweets were a government forum, like a public government hearing held in a meeting room rented in a private hotel. “But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” Thomas remarked, referring to Twitter’s banning Trump from the platform.

Thomas traces the history of government regulation of private businesses open to the public: “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.” He cites an 1894 decision which held that telegraphs, because they “resemble railroad companies and other common carriers,” were “bound to serve all customers alike, without discrimination.” Telegraph operators had special protection from defamation, since they were merely conveying someone else’s message.

Should Congress demand that social media giants act as common carriers, as has been legislated for telephone companies? Thomas writes: “To the contrary, it has given digital platforms ‘immunity from certain types of suits,’ with respect to content they distribute [Section 230], but it has not imposed corresponding responsibilities, like nondiscrimination.”

And are these companies truly private actors? Think about the pressure brought to bear on the numerous Congressional hearings into combatting “disinformation.” Thomas writes: “Although a ‘private entity is not ordinarily constrained by the First Amendment,’ it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.”

Thomas concludes his concurrence: “The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. 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. This petition [which was declared moot], unfortunately, affords us no opportunity to confront them.”

Thomas’s opinion provides a much more thoughtful approach to these issues than did President Trump’s ill-conceived demands that Section 230 of the Communications Decency Act be repealed.