On Monday, the U.S. Supreme Court declared that a lawsuit over then-President Trump blocking certain Twitter users from commenting on his feed was moot. Justice Clarence Thomas weighed in with a 12-page opinion that railed against the power of social media giants.
The case is no longer viable since Trump is no longer in office and Twitter has banned him permanently from its platform. While Justice Thomas was in agreement with the ruling, he made it clear that the issue was complex since Trump did not have full control over his own account and his freedom of speech was suppressed on Twitter.
“[I]t seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” Thomas scathingly wrote in his concurring opinion. “Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service, to remove the account ‘at any time for any or no reason.’ Twitter exercised its authority to do exactly that.”
Previously, the Second Circuit Court of Appeals ruled against Trump in the matter. Their premise was that since Trump used his account for political purposes, the comment section of his tweets was considered a public forum and was protected by free speech under the First Amendment. To block anyone on the account was therefore allegedly unconstitutional. The case was eventually bumped up to the Supreme Court.
Justice Clarence Thomas is always worth reading closely. Today is no exception. Read his entire concurrence today (starts at p. 9 of this PDF: https://t.co/41xQzdttGu) and then note the reference here to Amazon… We need more legal thinkers like Justice Thomas. pic.twitter.com/mS1qipAJmZ
— Ryan T. Anderson (@RyanTAnd) April 5, 2021
The long-time SCOTUS justice noted that even though Trump was able to block users, Twitter had the power to block “all Twitter users from interacting with his messages” by banning the former president’s account entirely.
“Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents’ complaint of stifled speech,” Thomas noted and went on to point out that “[w]hether governmental use of private space implicates the First Amendment often depends on the government’s control over that space.”
Thomas warned that the overwhelming and complete control that is wielded by social media giants carries with it its own set of issues.
“The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him,” Thomas stated. “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.”
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is control of so much speech in the hands of a few private parties,” Thomas added. “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 called out Google and Facebook by name, outlining their massive power.
“Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin),” Thomas said.
The comments by Justice Thomas appear to be aimed at prodding Congress to declare Twitter, Facebook, and other Big Tech giants as “common carriers.” That would seemingly force them to host all users regardless of their political views.
Some on Twitter saw Thomas’ words as a conservative victory of sorts and as a proclamation against Big Tech:
🚨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
Justice Clarence Thomas’s thoughts on Free Speech could be a HUGE win for conservatives who fight big tech censorship. pic.twitter.com/F9RyefvNh4
— Noah Griffith (@Noah_Griffith_) April 5, 2021
BREAKING: Supreme Court Justice Clarence Thomas finds social media companies do not have First Amendment right to ban protected speech and that Section 230 is unconstitutional
— Jack Posobiec (@JackPosobiec) April 5, 2021
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