Justice Thomas argues for regulating Google, Facebook, and Twitter as public utilities

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.

U.S. Supreme Court

Issie Lapowsky for Protocol:

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.”

Adam Liptak for The New York Times:

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

31 Comments

  1. Common Carriers are what these companies are. Imagine being blocked by your phone company because they dont like what you say when you talk to you friends. Or not being able to shop in a grocery store because they dont like your politics. Common Carriers cannot so discriminate. Great call by Justice Thomas!

    1. The legal description of a common carrier includes the following:

      “A common carrier, as distinct from a contract carrier, offers its services to the general public under license or authority provided by a regulatory body, which has usually been granted “ministerial authority” by the legislation that created it.

      “A common carrier holds itself out to provide service to the general public without discrimination (to meet the needs of the regulator’s quasi judicial role of impartiality toward the public’s interest) for the “public convenience and necessity.” A common carrier must further demonstrate to the regulator that it is “fit, willing, and able” to provide those services for which it is granted authority.”

      So, in order to regard digital platforms as common carriers, the government would have to assert that it has the power to license and regulate their free expression. Do we really want to give the Government that kind of power?

      Please note that Justice Thomas was speaking for himself alone. The other seven judges who signed off on the majority order never reached that issue, as it was unnecessary to the disposition of the case. This was basically just an off point rant, what lawyers call obiter dicta.

      https://slate.com/technology/2021/04/clarence-thomas-social-media-first-amendment-censorship.html

      1. “So, in order to regard digital platforms as common carriers, the government would have to assert that it has the power to license and regulate their free expression. Do we really want to give the Government that kind of power?”

        Answer:

        “As Congress once again demands that Silicon Valley crack down on speech, the Director of Research at the American Economic Liberties Project outlines the real problem, and better solutions”

        https://taibbi.substack.com/p/alternatives-to-censorship-interview-834

      2. “Do we really want to give the government that kind of power?”
        Let’s turn that one around… do we want to leave Google’s formidable power in its unelected hands without regulation?

        But votes aside, how about voting with money? Because of their vast partner network, merely using the web makes Google money. I cannot chose whether Google makes money from my behavior.

        Right to forget, royalties on other’s information, and other considerations often bring it conflict with personal rights.

      3. ROTFL at the story source link!!!

        Gee what a surprise, one of the most far leftist websites prints Marxist crap disinformation and condemnation of conservatives DAILY. They have ZERO credibility — SAME AS YOU, brainless…

    2. “… Or not being able to shop in a grocery store because they don’t like your politics”. Somewhat similar to that is the Supreme Court Ruling that a baker (that sells to the general public) need not bake a wedding cake for a gay couple because he doesn’t believe in their politics or faith or beliefs.

      It is a fine line when the Government becomes the “gate keeper” for what a citizen is allowed to believe or be permitted to do based upon certain beliefs. Good or Evil things can occur when Government regulates businesses.

      Usually the GOP is against Government regulations. It is curious to view that in certain cases, the GOP patrons have no problem with it.

    3. Yes, most excellent opinion by Justice Thomas that gets the discrimination and censorship of information by a handful of too powerful Leftist companies.

      Repeal Section 230 and make these billionaire fat cat companies compete on a level playing field like everyone else.

      The days of their special status protections are numbered…

      1. Has it escaped your notice that the White House and both chambers of Congress are controlled by Democrats who aren’t asking why Parler was deleted but why it wasn’t deleted sooner? if you give the Government the power to regulate public discourse, you may not like the regulations that Joe Biden, Chuck Schumer, and Nancy Pellosi write.

        1. Nicolas Sandman successfully sued and won judgements againgst Big Media companies CNN, NYT and WashPost for false reporting defaming his character.

          Nicolas Sandman cannot sue the handful of Big Tech companies because of blanket legal protections courtesy of an outdated 1990s law Section 230 afforded no other companies.

          Big Tech must operate like everyone else, period…

          1. Big Media and Big Tech are treated as different because they are different. The NYT and NBC have direct control in advance of any possible defamatory material. If they choose to publish it, they face the consequences of that choice. Facebook and Twitter do not have advance notice of what their users might post on their accounts, yet you would make them liable anyway.

            Do you really want MDN, for example, to “operate like everyone else,” which would require them to either read and fact-check every comment before publication or simply ban comments entirely?

            1. Says you. They are not different because both are responsible for publishing, editing and censoring published information. No difference and must be treated the same particularly because they are HYPOCRITES CENSORING conservative speech only while allowing anarchist, terrorist and leftist looney hate speech to flourish. What part do you not understand, brainless?…

            2. Can you honestly not see the difference between the editor of a community newspaper who solicits, edits, and publishes every word that appears in it, and a guy who installs a bulletin board near the neighborhood mailboxes so that people can post their own notices?

    4. Dumb answer, phone calls leave no trail that millions can instantly see and share. I’ll never run across your comments of you on your “Private” phone call. Same with the lame shopping analogy..
      Try again

  2. Given their monopoly-like grasp on, and control of, the market, they act as utilities and must be regulated as such to smack the racist, biased, libturd stupidity out of them.

  3. Free markets only work when people have actual realistic alternatives. If switching-costs involve losing all your friends, or making all your paid software not work, or buying a $1000 device, then the company has achieved government-like control over their customers, and should be subject to public oversight.

    1. They were taken out because they found it CRITICALLY IMPORTANT to protect nazi’s. They could have even just done a half-assed job like Facebook, Twitter, etc. does, but, no, they realized that nazi’s were their core demographic and they didn’t have the option to turn them away.

      Facebook and Twitter are around primarily because they’re not dependent on nazi’s. So, it’s like a business lesson. If your business heavily depends on patronage by white supremacists and nazi’s not ONLY are you the baddies, but you ALSO better make sure the companies you rely on for infrastructure and support are also ok with white supremacists and nazi’s 🙂

  4. If we use the Electric Utility as an example and we equate user speech in the form of text/media content with power generated via privately owned solar panels connecting to the power grid (social network infrastructure), doesn’t that utility have the option of not accepting/allowing that privately generated power under current regulatory laws?

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