Clarence Thomas and Part 230: Why the justice’s musings matter
Supreme Court Justice Clarence Thomas made waves last week when he suggested regulating giant social media companies like utilities.
Tasos Katopodis / Getty Images
Supreme Court Justice Clarence Thomas fired a warning shot on social media giants Facebook and Twitter on Monday, highlighting the possibility of stricter regulation and a possible radical change in thinking around the First Amendment and the.
On Monday, Thomas and the other eight Supreme Court justicesin one case with former . The court cleared a lower court ruling that Trump’s actions were unconstitutional. With Trump no longer president, the Supreme Court said the case has been contentious.
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Nonetheless, Thomas took the opportunity to write a brief consensus statement explaining why the government should regulate social media companies such as common carriers, a designation often given to utilities such as telephone networks. This mindset would prevent social media companies from removing content from their websites and making sure that everyone has equal access to the platforms.
“If the analogy between common operators and digital platforms is correct, there can be an answer for dissatisfied platform users who would welcome it not to be blocked: laws that limit the platform’s right of exclusion,” said Thomas in his opinion.
The brief statement could have a major impact on brewing scrutiny of a decade-old law protecting companies like Facebook and Twitter from complaints about content that users post on their platforms. Legislators on both the Democratic and Republican sides of the Ganges are calling for reforms to Section 230, a provision in the Communications Decency Act that gives social media businesses legal protection.
Calls for reform have taken on a new urgency as social media sites battle a barrage of worrying content, including disinformation about, the result of the US presidential election and the . But exactly how to initiate reform is something politicians on opposite sides of the political spectrum disagree on.
Democrats argue that Section 230 prevents social media companies from doing more to moderate their platforms, such as:and disinformation about COVID-19. Republicans take the opposite view. They want the law repealed because they believe Silicon Valley’s powerhouses are biased against the law and are working to censor conservatives like Trump while giving a passport to liberal politicians.
Thomas, who has long voiced originalist views on the First Amendment, echoed Conservative concerns about censorship. His comments from the US Supreme Court could add to these grievances and help them gain a foothold in Congress.
“There’s a lot of appetite for legislative reforms for 230,” said Gautam Hans, an assistant professor at Vanderbilt University who specializes in the First Amendment Act and Section 230. “The opinion itself challenges some of the current provisions … which I think means some lawmakers are going to use this to say, ‘We have a Supreme Court judge who thinks we have some problems here. Why don’t we go in and try to fix this? “
What could this legislation look like?
As the rhetoric surrounding the reform of Section 230 intensifies, lawmakers on both sides of the political spectrum enacted a number of laws over the past year. But so far none of this has gained much traction.
Some bills call for the liability protection to be removed completely, while others change or refine the protection. There are bills in place that limit the scope of Section 230 by restricting the types of activities protected by law. Other bills remove liability protection and let companies deserve that protection by showing that they are politically neutral when it comes to moderating content.
Mark Zuckerberg, CEO of Facebook, has also proposed a correction of the law. in theLast month, he called for more transparency from social media companies, suggesting that companies “need to demonstrate that they have systems in place to identify and remove illegal content”. He also said that companies should not be held responsible for content that escapes their detection.
The topic of social media bias was largely a conservative topic that Republican senators like Josh Hawley of Missouri and Ted Cruz of Texas used in Congressional hearings to berate Zuckerberg and Twitter CEO Jack Dorsey. Republican lawmakers have questioned executives repeatedly about these allegations, although there is little evidence to suggest such a bias exists.
Thomas’ opinion, not affiliated with any other judiciary in the court, spoke of unprecedented control of “so much speech in the hands of a few private parties”. And he predicted that the court would be forced to deal with how the law deals with major social media platforms. He described the threat to freedom of speech as a “blatant concern”.
In the statement, he addressed the lower court’s decision that Trump violated the first amendment by blocking people from his Twitter account. Instead of violating Trump’s freedom of speech, Thomas argued that the social media platforms threatened the first change. He claims the sheer size of the platforms and the power with which they completely close Trump’s account testify to their far-reaching power.
“”[I]If the goal is to ensure that language is not stifled, “he wrote,” then inevitably the dominant digital platforms themselves must be the greatest concern. “
It also targeted Google, which “can suppress content by deindexing or downloading a search result, or distracting users by manually changing the autocomplete results of certain content”. He said Amazon “can inflict disastrous consequences on authors by, among other things, blocking a listing.”
Thomas’s warnings build on arguments put forward in an October ruling asking the court to narrow the interpretation of Section 230. He suggested the law was too broad.
It could be difficult for lawmakers to translate Thomas’s opinion directly into legislation, Hans said. But he added that it is likely that Thomas’ arguments could be used to promote proposals calling for some kind of “fairness doctrine” for extremely large tech companies.
How Thomas’ views have changed
However, Thomas’s argument to justify government regulation runs counter to the arguments he has put forward in the past. He argues that these large companies should be treated as joint transportation companies, but it was Thomas who was inAllow the Federal Communications Commission not to regulate broadband providers as joint network operators.
More recently, Thomas and his Conservative counterparts signed the Manhattan Community Access Corp. decision in court. against Halleck, which was written by Judge Brett Kavanaugh and ruled that the publicly accessible channel MNN had not infringed the rights of two of its staff when it stopped broadcasting a program they produced that was critical to the channel. In the statement, Kavanaugh ruled that MNN was a private company and was not subject to the same First Amendment protection requirements as the government.
“What I find very strange about all of this is that two years ago Thomas joined an opinion that basically says something completely different from what he wrote this week,” said Hans. Hans said these inconsistencies make him question whether Thomas’ views are law-based or more politically influenced.
“Maybe I’m just one of those cynical people who think this is all about politics,” he said. “But I think if the facts on the ground about social media companies were different, he probably wouldn’t have written that opinion.”