Clarence Thomas and First Amendment Limits for Tech Companies

Justice Thomas's Misunderstanding of Digital Platforms

A concerning lack of understanding regarding digital technologies was displayed by Supreme Court Justice Clarence Thomas in a recently published opinion. His attempt to dissect the legal challenges faced by social media platforms, specifically concerning Twitter’s decision to ban former President Trump, resulted in an argument that is both ill-informed and, at times, perplexing, suggesting a potential need to curtail these companies’ First Amendment rights.

Misconstruing the Core Issues

Several key points appear to be either willfully misinterpreted or fundamentally misunderstood by Justice Thomas. His analysis begins with a characterization of Trump’s Twitter usage.

It is worth recalling that multiple lawsuits were filed after individuals were blocked by Trump on the platform. These suits alleged that his use of Twitter constituted the creation of a “public forum,” legally prohibiting the exclusion of users based on political viewpoints. (This case became irrelevant following its appeal and was subsequently dismissed, though it served as a platform for Thomas’s commentary.)

The Public Forum Analogy

Thomas notes, “Mr. Trump, it turned out, had only limited control of the account; Twitter has permanently removed the account from the platform.” He then questions whether it is logical to define something as a government forum when a private entity possesses the authority to eliminate it entirely.

However, this reasoning overlooks a crucial parallel. He uses the example of a government agency utilizing a hotel conference room for a public hearing. Political opinions cannot be suppressed within that space. Yet, disruptive individuals can be removed by hotel security, as the room remains privately owned.

The most pertinent analogy – what if government representatives themselves were being disruptive, prompting the hotel to consider their removal – is conspicuously absent from his analysis.

Muddying the Waters

The omission of this scenario is telling. It suggests that Thomas is less interested in clarity and more focused on creating ambiguity in anticipation of a politically charged debate over free speech.

In a tone reminiscent of suggesting rather than asserting, Thomas proposes that if the issue is the excessive power of these platforms over free expression, there are historical legal avenues to limit that power.

The "Common Carrier" Argument

Thomas initially argues that platforms like Facebook and Google could be classified as “common carriers,” a concept originating with actual cargo transport but now referring to services providing simple distribution – serving all customers without discrimination. A telephone company is a prime example, connecting calls without choosing content.

He acknowledges that “applying old doctrines to new digital platforms is rarely straightforward.” However, his application of the doctrine is flawed.

He states that these platforms “carry” information from user to user, equating cable laid by telephone companies with the “information infrastructure” established by Google, controllable in a similar manner.

A Fundamental Disconnect

This comparison is demonstrably incorrect, and in numerous ways. The disparity is so significant that it borders on the absurd.

To equate Facebook and Google with telephone lines is a substantial overreach. These companies have built extensive empires by adding substantial storage, processing, analytical capabilities, and other services beyond basic communication. Suggesting Apple is a common carrier simply because computers move data is a comparable logical leap.

Existing Legal Precedent

There is little need to delve into the intricate technical and legal reasons why this opinion is unsound, as these have been thoroughly explored over the years, particularly by the FCC – an agency to which the Supreme Court has consistently deferred as an expert on this matter. If Facebook were a common carrier, it would fall under FCC jurisdiction, which is not the case, and widely accepted as such.

This consensus has been repeatedly affirmed by various FCC administrations and is itself a recognized Supreme Court precedent.

Contradictory Opinions

Interestingly, Associate Justice Kavanaugh previously offered a strikingly different, yet equally problematic, legal opinion. He argued that the threshold for qualifying as a common carrier was so high that even broadband providers did not meet it. (This argument was used to dismantle net neutrality, a debate potentially resurfacing.) Judge Srinivasan rightly pointed out the flaws in Kavanaugh’s reasoning.

These two opinions, from conservative justices, appear contradictory, yet share a common flaw.

Prioritizing Politics Over Facts

Kavanaugh asserts that broadband providers offer sophisticated services beyond simple connectivity (which they do not), while Thomas claims that companies providing such services are merely pipes.

Ultimately, both justices appear to prioritize political objectives over factual accuracy. Kavanaugh aimed to obstruct a Democratic effort to strengthen net neutrality, while Thomas seeks to exert control over social media platforms perceived as biased against conservatives.

Legitimizing Grievances

Although the case used as a basis for this discussion is now moot – Trump is no longer president and his account is inactive – Thomas expresses regret over this outcome.

He concludes, “The right to cut off speech lies most powerfully in the hands of private digital platforms.” He acknowledges that the extent to which this power impacts the First Amendment and the legality of modifying it are “interesting and important questions” that this case does not allow them to address.

Thomas’s hypotheticals open avenues to restrict the First Amendment rights of digital platforms and validate claims of grievance, particularly from one side of the political spectrum. (Slate’s Mark Joseph Stern described Thomas’s argument as a “paranoid Marxist delusion” and provided further context.)

Cynical Sophistry

While social media and tech companies undoubtedly warrant scrutiny regarding various issues – they operate in a largely unregulated global environment – the arguments presented by Thomas and Kavanaugh reek of cynical partisan sophistry. This endorsement by Thomas has no immediate legal impact but will undoubtedly fuel ongoing political contention.