Supreme Court Justice Clarence Thomas today outlined a detailed legal argument for why social media companies might need to be subject to strict rules forbidding them from denying service to users for any reason or no reason, including the possibility of designating them as common carriers — which would effectively eliminate their ability to ban or censor users for legal, First Amendment protected speech.
Thomas outlined his opinion in a concurrence to reject a case that began under the Trump administration, challenging the President’s right to block users from his Twitter feed.
However, Thomas indicated that the Supreme Court will soon have to address the issue of tech censorship.
“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 Thomas.
Such a case would likely encompass many of the complaints brought by conservatives against social media companies. Social media censorship has intensely escalated over the past few years, with targets of bans and censorship including elected officials like President Trump, political candidates like Laura Loomer, and news organizations like Breitbart News and the New York Post.
Thomas also noted other cases that raised concerns about digital platforms’ control over speech. On the rejected case brought by Loomer and Freedom Watch last year, Thomas noted that it highlighted “two important facts.”
Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.
The case addressed by Thomas was brought on the basis that the president is a public official, and that his feed should thus be considered a constitutionally protected public forum, therefore implying that the President cannot bar users from his feed via the block feature.
Thomas argued that Twitter’s decision to ban President Trump proved that Twitter, not the President, controlled whether citizens could interact with him.
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, thus barring all Twitter users from interacting with his messages.
Despite rejecting the Twitter blocking case, Thomas went on to note many of the issues with social media censorship, and suggested that tech platforms might be considered common carriers or places of public accommodation, both of which are tightly restricted in their ability to deny service.