Last fall, Justice Clarence Thomas argued that it was time to rein in Section 230 immunity. Now, Justice Thomas is laying out an argument for why companies like Facebook, Twitter and Google should be regulated as public utilities.
On Monday, the Supreme Court vacated a lower court ruling in finding that President Trump had acted unconstitutionally by blocking people on Twitter. That case, which the justices deemed moot, hinged on the idea that the @realdonaldtrump account was a public forum run by the president of the United States, and therefore, was constitutionally prohibited from stifling private speech. In his concurrence, Justice Thomas agrees with the decision, but argues that, in fact, Twitter’s recent ban of the @realdonaldtrump account suggests that it’s platforms themselves, not the government officials on them, that hold all the power.
“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” Thomas writes. “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.”
Thomas argues that some digital platforms are “sufficiently akin” to common carriers like telephone companies. “A traditional telephone company laid physical wires to create a network connecting people,” Thomas writes. “Digital platforms lay information infrastructure that can be controlled in much the same way.”
More surprising was a 12-page concurring opinion from Justice Clarence Thomas musing on what he called the dangerous power a few private companies have over free speech.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” he wrote. “Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. 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.”
MacDailyNews Take: Excerpts from Justice Thomas’ concurring opinion:
If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude. Historically, at least two legal doctrines limited a company’s right to exclude.
First, 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…
And this Court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when “a business, by circumstances and its nature, . . . rise[s] from private to be of public concern.”
… Much like with a communications utility, this concentra- tion gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet—and users rarely do— Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by dein- dexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results… Facebook and Twitter can greatly narrow a person’s information flow through similar means…
If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.
Due to the importance that the internet has today, and has had for many years now, search engines should be declared a public utility and regulated, preferably by an independent bipartisan body, to ensure that censorship, shadow banning, and the like are not occurring. No such protections exist today. – MacDailyNews, March 22, 2021