Justice Clarence Thomas suggests Section 230 of Telecommunications Act may be unconstitutional
Thomas' comments in concurring opinion came as a surprise for many observing the proceedings, who were not expecting Section 230 to come under fire
Comments from Supreme Court justice Clarence Thomas on Monday will embolden opponents of major tech companies. In a case over whether President Joe Biden can block Twitter users from his personal account, Thomas wrote that Section 230, a federal law that protects online platforms from liability for content moderation, may violate the First Amendment.
The US Supreme Court Monday vacated a 2019 appeals-court ruling that said then-President Donald Trump violated the First Amendment by blocking people on Twitter. The high court declared the case "moot" because Trump is no longer president.
For legal observers, the ruling itself was less interesting than a 12-page concurring opinion filed by Justice Clarence Thomas, who argued that Twitter and similar companies could face some First Amendment restrictions even though they are not government agencies. That's in contrast to the standard view that the First Amendment's free speech clause does not prohibit private companies from restricting speech on their platforms.
Thomas also criticized the Section 230 legal protections given to online platforms and argued that free-speech law shouldn't necessarily prevent lawmakers from regulating those platforms as common carriers. He wrote that "regulation restricting a digital platform's right to exclude [content] might not appreciably impede the platform from speaking."
Thomas's concurring opinion to the majority suggested that major social media companies could be treated as both "common carriers" and as "places of public accommodation," two designations that would restrict platforms' ability to bar certain speech.
"Even if digital platforms are not close enough to common carriers," Thomas wrote, "legislatures might still be able to treat digital platforms like places of public accommodation."
The case addresses whether a government official — in this case, Biden — can block third-party accounts from his personal account if it is at times also used to announce official actions and policies. It mirrors a case brought by the same institute against the Trump administration, in which the court ruled Trump had to unblock third-party accounts.
Monday’s SCOTUS decision on the ability of social media users to block third-party accounts from their feed was the result of a request made by President Donald Trump’s administration in 2017. (Photo: AP file)
Though Thomas's opinion does not affect the outcome ofthe case decided Monday, it comes as a welcome surprise for advocates of greater controls on social media platforms and their ability to restrict users. Multiple state legislatures have floated restrictions on major social media platforms.
Those restrictions have largely been viewed as not feasible, since Section 230 protects the ability of private platforms to make decisions about what content they host. But Thomas cited an argument that, when states pass laws barring social media censorship, Section 230 itself may violate the First Amendment by preempting those state laws.
"Justice Thomas is right: Big Tech's massive power to deliver and control the information flow in America gives it ‘common carrier' status," said Mike Davis, founder of the anti-230 Internet Accountability Project. 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."
Legal scholar Eugene Volokh, whose explanation of this argument was cited by Thomas, said that the justice's reading would face an uphill battle but that it was not on its face implausible.
"If I had to bet money, I would guess the courts would say Section 230 simply protects platforms' right to exclude people from their property," Volokh told ACV.
He also noted that social media platforms have much more room to maneuver in how they choose to recommend or promote material, even if they are required to host certain material. But several cases cited by Thomas suggest states can designate private entities as common carriers and regulate them accordingly.
Thomas ended by arguing that, "as Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms."
Thomas doesn't seem to be arguing for a wide-ranging application of the First Amendment to all online moderation decisions. Instead, he wrote that free-speech law could apply "in limited circumstances," such as when a digital platform blocks user-submitted content "in response to government threats."
Attempting to apply telecommunications rules from the 20th Century to social media platforms in the 21 Century is filled with pitfalls and difficulties. (Phto Illustration: ACV/stock photo)
"Because of the change in Presidential administration, the Court correctly vacates the Second Circuit's decision," Thomas wrote. "I write separately to note that this petition highlights the principal legal difficulty that surrounds digital platforms — namely, that applying old doctrines to new digital platforms is rarely straightforward. Respondents [the Twitter users who sued Trump] have a point, for example, that some aspects of Mr. Trump's account resemble a constitutionally protected public forum. 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."
The last line is an obvious reference to Twitter suspending and then banning President Donald Trump’s personal Twitter account in January after the alleged but unproven “insurrection plot” that the platform chose to blame on Trump.
The Trump case didn't give the Supreme Court a chance to rule on the questions Thomas raised, but he is hoping that future cases will provide such an opportunity.
If Congress took up Thomas' call to regulate online platforms, we could get a system in which Internet service providers like Comcast and AT&T are not regulated as common carriers while Twitter, Facebook, and Google do face the common-carrier restrictions that traditionally applied to telecommunications companies.
Cable and satellite companies are driven by market forces to provide a broad spectrum of channel offerings and content, having an incentive for let an offering find its audience. That is different from Google, Facebook, Twitter and other social media platforms that have recently chosen to drive discussion in “acceptable directions” determined by the platforms, censor opposing views and ban material and users, apparently only for the reason they do not like them.
Thomas has played an important role in how common-carrier regulations are applied or not applied to Internet service providers. In the 2005 Brand X case, Thomas wrote the Supreme Court opinion that lets the Federal Communications Commission classify Internet service as either an information service or telecommunications as long as it provides a reasonable justification for its decision.
The FCC can only apply common-carrier rules to Internet service if it is classified as telecommunications, and the Brand X ruling allowed the FCC to change that classification decision multiple times under different administrations. The latest such reclassification came when then-FCC Chairman Ajit Pai deregulated broadband in 2017. Thomas last year wrote that he regrets the Brand X decision because it gave federal agencies like the FCC too much leeway in interpreting U.S. law.