Justice Thomas suggests regulating tech platforms like utilities
Associate Justice Clarence Thomas poses for the official group photo on November 30, 2018 at the US Supreme Court in Washington, DC.
Almond Ngan | AFP | Getty Images
Justice Clarence Thomas suggested Monday that tech platforms like utilities could be regulated, which would mean a big shift for services like Facebook, Google and Twitter.
Thomas, one of the most conservative voices in the Supreme Court, advanced his position in an assent that was tabled along with the decision to overturn a lower court ruling involving former President Donald Trump’s Twitter account.
“There is a fair argument that some digital platforms are sufficiently similar to common providers or accommodations to be regulated that way,” wrote Thomas.
The regulation of online platforms such as utilities would require fundamental changes in the way technology platforms work. Depending on the specific contours of such regulation, social media websites could be forced to change or abolish many of the moderation standards they use to keep harassment, hate speech, and nudity off their platforms. This is the opposite of what many Democrats have fought for. This is a greater liability for platforms hosting certain types of offensive or illegal content.
Twitter and Trump
The decision erased a federal appeals court ruling that Trump had violated the constitution by blocking his critics from his Twitter account. The lower court said Trump’s move effectively banned citizens from attending a public forum in violation of their First Amendment rights.
The Supreme Court ordered the lower court to dismiss the case as contentious because Trump is no longer president. The lawsuit prevents the Federal Court of Appeal’s decision from serving as a precedent for future cases.
Thomas’s approval signals that justice is open to arguments that could require a fundamental change in how technology platforms work.
While he agreed that Trump’s Twitter account “resembled a constitutionally protected public forum” in some ways, “it seems rather strange to say that something is a government forum when a private company has full powers to remove it,” he said . having regard to Twitter’s decision to remove Trump’s account from the platform following the January 6th Uprising in the U.S. Capitol.
“Any control Mr. Trump had over the account was very pale in comparison to the authority mandated by Twitter’s Terms of Service to remove the account” at any time for no reason “,” wrote Thomas.
Thomas said the solution to the unprecedented problems presented by the technology platforms could “lie in lessons that limit a private company’s right of exclusion.”
It’s not the first time he’s been open to the idea of improving the status quo of technology regulation.
In an October filing, Thomas wrote that it was “up to the court” to determine the “correct interpretation” of Section 230, the law that protects tech platforms from, for the contributions of their users, or for the manner in which how they moderate and remove content to be held liable. Thomas suggested that the law had been interpreted too broadly and that there was reason to reconsider its application.
Trump’s Federal Communications Commission chairman referred to Thomas’s testimony in his decision to “clear” the law, but it did not do so until the administration changed hands. Democrats take a very different view of how the law should be revised, although they too are looking for changes.
Thomas’s approval on Monday was the only one filed alongside the lawsuit and did not include a majority statement. This could be an indication that Thomas’ colleagues do not share his reasoning, especially since Thomas is known for taking views that differ from the rest of the court.
Thomas also discussed the wide reach of several major technology platforms on information flow and even books in his statement. He argued that it didn’t necessarily matter whether platforms like Amazon, Facebook, and Twitter weren’t the only means of spreading speech, as long as their relative power to do so was unmatched.
“A person could always avoid the toll bridge or the train and instead swim the Charles River or hike the Oregon Trail,” he wrote. “However, when assessing whether a company has significant market power, it comes down to whether the alternatives are comparable. For many of today’s digital platforms, this is nothing.”
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