Clarence Thomas criticises Section 230 of the US Constitution, proposes solutions for social media giants’ threats to First Amendment

Writer: Lois

US Supreme Court Justice Clarence Thomas filed a 12-page concurring opinion on Monday declaring that social media giants’ ability to restrict speech on their platforms should make them liable for First Amendment violations, regardless of their existence as private entities. 

The document follows the US Supreme Court’s voiding of a 2019 appeals-court ruling which declared President Donald Trump’s blocking of several Twitter users as a violation of the First Amendment. The high court ruled the case as moot as Mr Trump is no longer the acting President.

Mr Thomas further criticised the legal protection Section 230 of the Constitution grants to tech giants. He asserted free-speech law should not stop lawmakers from regulating such platforms as common carriers.

Rather than a broad application of the First Amendment across all online moderation decisions, Mr Thomas argues for free-speech law to be applied in limited, reasonable circumstances. For example, when user-submitted content is taken down in response to government threats.

“Because of the change in Presidential administration, the Court correctly vacates the Second Circuit’s decision,” Mr Thomas wrote.

“The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. 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. This petition, unfortunately, affords us no opportunity to confront them.”

Mr Thomas noted Twitter’s permanent removal of President Trump from the platform for inciting so-called violence showed the President himself had minimal control over his account. He further commented that the First Amendment does not apply to President Trump’s case as Twitter has the final say.

“Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents’ complaint of stifled speech. Whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space,” Mr Thomas wrote.
 
“The disparity between Twitter’s control and Mr Trump’s control is stark, to say the least. Mr Trump blocked several people from interacting with his messages. Twitter barred Mr Trump not only from interacting with a few users but removed him from the entire platform, thus barring all Twitter users from interacting with his messages. Under its terms of service, Twitter can remove any person from the platform—including the President of the United States—’at any time for any or no reason.’”

Although private companies are usually unaffected by the First Amendment, Mr Thomas suggested these entities should face the consequences if they are politically coerced or influenced to act in a way the government could not, like the censorship of lawful opinions.

“The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. Under this doctrine, plaintiffs might have colourable claims against a digital platform if it took adverse action against them in response to government threats,” wrote the US Supreme Court Justice.

Mr Thomas also emphasised the importance of imposing responsibilities, like nondiscrimination, that corresponds to the immunity Section 230 grants social media companies from lawsuits over their treatment of user-submitted content. According to the US Supreme Court Justice, Section 230’s provision of legal immunity creates a greater risk of unconstitutional government intervention. 

“[I]mmunity provisions like Section 230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship,” stated Mr Thomas.

He then noted the resemblance of digital platforms to traditional common carriers and should be treated as such. He used conventional telephone companies as an example. Social media platforms have a similar information infrastructure that carries information between users. 

 “The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms,” cited Mr Thomas.

Various political and academic figures have attacked Mr Clarence for his views and suggestions, including US Rep. Ted Lieu (D-Calif.), who took a stab at the US Supreme Court Justice on Twitter. 

“Justice Clarence Thomas wants the government to regulate speech on the Internet. If you are a Republican who supports this view, don’t ever lecture anyone on free speech ever again,” the US Congressman wrote.

Jeff Kosseff, an Assistant Professor of Cybersecurity Law at the US Naval Academy who has written a book on Section 230, disputed Mr Thomas’ argument on a Twitter thread.

“I think that it’s very unlikely that a state must-carry law for social media would survive [First Amendment] scrutiny,” Mr Kosseff wrote.

“Even if such a hypothetical state law passed First Amendment muster, it’s unlikely that Section 230 would be found to violate the First Amendment under existing interpretations of US law,” the assistant professor added.

Ars Technica. (April 6, 2021). Clarence Thomas blasts Section 230, wants “common-carrier” rules on Twitter.
https://arstechnica.com/tech-policy/2021/04/clarence-thomas-blasts-section-230-wants-common-carrier-rules-on-twitter/