Supreme Court argument casts doubt on Facebook, Twitter free speech rights

Posted:
in General Discussion edited April 5
In a ruling on a different matter, Supreme Court Justice Clarence Thomas has argued that social media platforms like Facebook and Twitter may not have a First Amendment right to regulate user commentary on their platforms.

Credit: Unsplash
Credit: Unsplash


On Monday, the U.S. Supreme Court threw out a pending First Amendment case over Twitter's ban of former President Donald Trump. Justice Thomas, however, weighed in on the issue with a 12-page opinion about the power of technology platforms.

The Supreme Court Justice wrote that platforms like Twitter and Facebook "provide avenues for historically unprecedented amounts of speech, including speech by government actors." Thomas added that the control over so much speech rests 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," Thomas wrote.

In his opinion, Thomas suggested that large social media platforms could be analogized to "common carriers" or "places of public accommodation." In the past, the court has ruled that neither retains First Amendment rights.

A common carrier is generally defined as an entity that transports peoples or goods as a service to the general public without discrimination. In the U.S., the term has been applied to telecommunication companies -- but not internet service providers for the most part.

"Places of public accommodations," which can include hotels, restaurants, or entertainment venues, are in a similarly tricky spot when it comes to First Amendment rights. It isn't clear how Thomas is applying the real-world definition of "places of public accommodations" to the all-digital Twitter and Facebook.

Thomas's opinion could be seen as an invitation for rules that could force social media platforms to host all customers regardless of their views. He also said that Section 230, a shield for internet companies, underscores the role they play as common carriers in contravention of 20 years of legal precedent and other existing rulings as it pertains to businesses' speech rights.

On Twitter's decision to block Trump, Thomas said a previous appeals court ruling that Trump's account was a public forum had some merit. However, he added that Twitter's blocking of Trump undermined that conclusion.

"Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter's authority, dictated in its terms of service, to remove the account at any time for any or no reason," Thomas wrote. "Twitter exercised its authority to do exactly that."

Social media companies and the laws that shield them from liability for user-posted content have come under fire in recent years. Thomas's opinion echoes common conservative complaints about tech platforms allegedly censoring their viewpoints.

On the other side of the aisle, Democrats have raised concerns about the spread of misinformation and disinformation.

The U.S. House of Representatives is currently considering legislation that could strip Section 230 protections that provide a liability shield for technology companies. Despite broad support for revising the law, legislators are still conflicted about how to actually reform or change it.
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Comments

  • Reply 1 of 36
    zimmiezimmie Posts: 500member
    If Clarance Thomas is against you, you know you've made an actual cogent argument. He is easily the least competent Supreme Court justice in the last century. He has written dissents which only cite other dissents he has written, as opposed to any law or actual precedent.
    roundaboutnowrob53montrosemacsjony0baconstangwilliamlondonronn
  • Reply 2 of 36
    jimh2jimh2 Posts: 323member
    Thomas is on to something here. Facebook, Twitter and others may be private companies, but their power to block individuals is far too great. The problem with blocking people is that it is ok if you do not like those people and their ideas. It becomes a problem when ideas and people you like are blocked. It becomes a bigger problem with company creates an agenda dictated by them. 
    bluefire1hodaranantksundaram
  • Reply 3 of 36
    bluefire1bluefire1 Posts: 1,104member
    Justice Thomas should be commended for recognizing the inherent danger of having put so much power in the hands of a few private entities. Back in the day, politicians never imagined that these private corporations, instead of being platforms for public opinion, became publishers, censoring whatever they decide is inappropriate, misinformation, or offensive. It is past time for Congress to either revisit Section 230 or have SCOTUS to do it for them.

    edited April 5 hodarwilliamlondonwatto_cobra
  • Reply 4 of 36
    ITGUYINSDITGUYINSD Posts: 247member
    jimh2 said:
    Thomas is on to something here. Facebook, Twitter and others may be private companies, but their power to block individuals is far too great. The problem with blocking people is that it is ok if you do not like those people and their ideas. It becomes a problem when ideas and people you like are blocked. It becomes a bigger problem with company creates an agenda dictated by them. 
    That's hardly the case.  Twitter didn't block Trump because they didn't like him.  They blocked him because he was a habitual poster of false, misleading and threatening information and he did not follow their policies.  Plain and simple.  But you said it yourself -- they are PRIVATE companies.  Don't like the rules?  Change your behavior (Trump was warned and he ignored), or they'll show you the door.

    dysamoriarob53roundaboutnowmontrosemacsjony0leavingthebiggbaconstangviclauyycgenovelleronn
  • Reply 5 of 36
    ITGUYINSDITGUYINSD Posts: 247member
    bluefire1 said:
    Justice Thomas should be commended for recognizing the inherent danger of having put so much power in the hands of a few private entities. Back in the day, politicians never imagined that these private corporations, instead of being platforms for public opinion, became publishers, censoring whatever they decide is inappropriate, misinformation, or offensive. It is past time for Congress to either revisit Section 230 or have SCOTUS to do it for them.

    Don't newspapers and other media outlets (FOX, Newsmax, CNN, etc.) get to decide what they want to broadcast?  Aren't they then deciding what is inappropriate. what is misinformation or offensive and choose to call it out, or, as some do, portray it as real news?  I think they have MORE power than Twitter and FB.  If I don't like what Fox has to say, I have the freedom to watch a different news.  Anyone can choose to not use FB or Twitter if you don't like their content.
    JaiOh81dysamoriarob53muthuk_vanalingamroundaboutnowforegoneconclusionmontrosemacsjony0leavingthebiggbaconstang
  • Reply 6 of 36
    mknelsonmknelson Posts: 701member
    ITGUYINSD said:
    bluefire1 said:
    Justice Thomas should be commended for recognizing the inherent danger of having put so much power in the hands of a few private entities. Back in the day, politicians never imagined that these private corporations, instead of being platforms for public opinion, became publishers, censoring whatever they decide is inappropriate, misinformation, or offensive. It is past time for Congress to either revisit Section 230 or have SCOTUS to do it for them.

    Don't newspapers and other media outlets (FOX, Newsmax, CNN, etc.) get to decide what they want to broadcast?  Aren't they then deciding what is inappropriate. what is misinformation or offensive and choose to call it out, or, as some do, portray it as real news?  I think they have MORE power than Twitter and FB.  If I don't like what Fox has to say, I have the freedom to watch a different news.  Anyone can choose to not use FB or Twitter if you don't like their content.
    Cut his mic! Cut his mic!

    But Fox doesn't like "Cancel Culture"  :D
    ITGUYINSDroundaboutnowhodarbaconstangviclauyycronn
  • Reply 7 of 36
    dysamoriadysamoria Posts: 3,196member
    So long as there continues to be false equivalency presented between that which is harmful garbage opinions & myths/propaganda that contradicts demonstrable facts, and that which is merely an emotional response of “I don’t like what they’re saying”, this will never be a conversation with any rational discourse or reasonable solutions.

    A sane society *should* suppress socially-destructive garbage to some degree.

    There are cases of conflicting opinions, and there are cases of socially-destructive lying. They’re not the same, and they should never be handled the same way.
    ITGUYINSDmuthuk_vanalingamroundaboutnowforegoneconclusionjony0baconstangronn
  • Reply 8 of 36
    rob53rob53 Posts: 2,489member
    ITGUYINSD said:
    bluefire1 said:
    Justice Thomas should be commended for recognizing the inherent danger of having put so much power in the hands of a few private entities. Back in the day, politicians never imagined that these private corporations, instead of being platforms for public opinion, became publishers, censoring whatever they decide is inappropriate, misinformation, or offensive. It is past time for Congress to either revisit Section 230 or have SCOTUS to do it for them.

    Don't newspapers and other media outlets (FOX, Newsmax, CNN, etc.) get to decide what they want to broadcast?  Aren't they then deciding what is inappropriate. what is misinformation or offensive and choose to call it out, or, as some do, portray it as real news?  I think they have MORE power than Twitter and FB.  If I don't like what Fox has to say, I have the freedom to watch a different news.  Anyone can choose to not use FB or Twitter if you don't like their content.
    Glad you called them media outlets because you'd be hard pressed to actually find a media outlet that's providing actual news. News by itself doesn't sell and that's all they care about. Bad or controversial news sells even better. It would be interesting if the Supreme Court justices actually understood how little actual real, not fake, news is being presented to Americans. I also find it difficult to find any benefit provided by the Supreme Court since they make things up all the time that are purely political .
    ITGUYINSD
  • Reply 9 of 36
    Clarence Thomas is really reaching here. A phone company or ISP is considered a common carrier because they have no role in the production of content. They're just providing the technology for content distribution. Applications like Facebook and Twitter DO have a role in the production of content since their software involves various choices on what types of content can be posted, how much of it can be posted, what file formats are allowed, and how all the content is presented through the app. The main difference between FB/Twitter per other media outlets is that they allowed greater access to unpaid amateurs to communicate through their platform. But as everyone knows, just because your next door neighbor can tweet photos of their cat at the same time Billie Eilish tweets promos for a new song doesn't mean that professional media stars see FB/Twitter as significantly different than any other media outlet these days. It's just another form of it. 
  • Reply 10 of 36
    EsquireCatsEsquireCats Posts: 1,142member
    Whether or not their actions are protected by the 1st amendment is irrelevant - it's an issue of breaching the terms of service. If this fool of a judge thinks invalidating the concept of terms and conditions is a good idea, then the bigger issue isn't what a few idiot users are capable of, the big issue is what these tech companies can do if not beholden to their own rules. (Basically arbitrary blocking without any rules being broken and the ability to fully shape the online discourse to however they want it to be.)
    montrosemacsjony0baconstang
  • Reply 11 of 36
    entropysentropys Posts: 2,879member
    ITGUYINSD said:
    bluefire1 said:
    Justice Thomas should be commended for recognizing the inherent danger of having put so much power in the hands of a few private entities. Back in the day, politicians never imagined that these private corporations, instead of being platforms for public opinion, became publishers, censoring whatever they decide is inappropriate, misinformation, or offensive. It is past time for Congress to either revisit Section 230 or have SCOTUS to do it for them.

    Don't newspapers and other media outlets (FOX, Newsmax, CNN, etc.) get to decide what they want to broadcast?  Aren't they then deciding what is inappropriate. what is misinformation or offensive and choose to call it out, or, as some do, portray it as real news?  I think they have MORE power than Twitter and FB.  If I don't like what Fox has to say, I have the freedom to watch a different news.  Anyone can choose to not use FB or Twitter if you don't like their content.
    Yes they do. But they are publishers, and are responsible for, and for example can be sued for content on their media.  A common carrier can’t be.
    edited April 5 anantksundarambaconstang
  • Reply 12 of 36
    22july201322july2013 Posts: 2,094member
    The Constitution says that Congress makes laws. The Constitution says is that the Supreme Court deals with "cases" and "controversies." The Constitution does not indicate whether Congress or the Supreme Court interprets any laws as being constitutional or not. Some of the founding fathers expressed views that it should be Congress (e.g., Alexander Hamilton and James Madison), while some expressed views it should be the Supreme Court. But in 1803 the US Supreme Court Chief Justice ruled in an opinion that this was the role of the US Supreme Court, and Congress didn't object. He said, "It is emphatically the province of the judicial department to say what the law is[.]" If Congress were to pass a law declaring themselves this responsibility, there is a good chance that the US Supreme Court would accept that, because this isn't a constitutionally defined activity.

    When the Supreme Court makes its decision, most of the time that decision cites federal or state laws. In those cases, a change in the law would make that decision reviewable. So most of the time the Supreme Court's ruling aren't unchallengeable. It's only when the decision is based solely on the constitution (either federal or state) that it would require a change in that constitution to be reviewable. Even then, constitutions can change. But no amendment to the US Federal constitution can ever be overruled by the Supreme Court as "unconstitutional."

    What is it that makes a telephone company a "common carrier" (as opposed to a "contract carrier") and makes a website operator "not one"? The answer is a law passed by Congress in 1934 which gave the FCC the role to administer telephone companies. On June 12, 2015, the FCC decided that Internet Service Providers (not website operators) were "common carriers" for the purposes of "net neutrality." This was revoked by the FCC on December 14, 2017 but on May 16, 2018 the US Senate passed a 
    non-binding resolution to have the FCC restore the rule. Clearly the final word on "common carriers" has not been spoken. It's generally the role of the US Congress to pass laws to resolve legal definitions. If Congress declared website operators to be "common carriers" then that would discharge websites of responsibility for user content. If Congress does not decide the matter, then the courts may be forced to decide. I think it's always better for Congress to decide the law because they are elected.

    As an example, both Presidents Reagan and Clinton asked Congress for a law that gave them line-item veto power over federal bills. This mechanism was not defined in the Constitution and so the Presidents asked Congress to define it in a law. And the US Congress obliged Clinton with such a law in 1996. Shortly after, the US Supreme Court declared this law to be against the Presentment Clause of the US Constitution. But I don't see anything in the US Constitution that would be overruled by the Supreme Court if Congress were to declare website operators as common carriers. Congress would probably have the final word on this matter if it wanted the final word.
  • Reply 13 of 36
    hodarhodar Posts: 335member
    dysamoria said:
    So long as there continues to be false equivalency presented between that which is harmful garbage opinions & myths/propaganda that contradicts demonstrable facts, and that which is merely an emotional response of “I don’t like what they’re saying”, this will never be a conversation with any rational discourse or reasonable solutions.

    A sane society *should* suppress socially-destructive garbage to some degree.

    There are cases of conflicting opinions, and there are cases of socially-destructive lying. They’re not the same, and they should never be handled the same way.
    Please remind me, when was the last time that the "Book burners", the "Censorship Police" and the thugs who attack and beat people with a different point of view (ie , Sturmabteilung) considered the "good guys"?   Silly me, I can't think of a single example.

    What's the point of freedom of speech, if any dissenting opinion is "shouted down" by a crowd?  As Thomas Jefferson said about the Freedom of Speech "I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it."  But, what would the know?
    jimh2entropysanantksundarambluefire1
  • Reply 14 of 36
    DAalsethDAalseth Posts: 1,485member
    zimmie said:
    If Clarance Thomas is against you, you know you've made an actual cogent argument. He is easily the least competent Supreme Court justice in the last century. He has written dissents which only cite other dissents he has written, as opposed to any law or actual precedent.
    Thomas was unqualified to be on the court when he was appointed, and now thirty some years later he is, amazingly, LESS qualified. 
    muthuk_vanalingamtmayroundaboutnowbaconstangMacProronn
  • Reply 15 of 36
    entropysentropys Posts: 2,879member
    Attacking the messenger rather than the message is rather unedifying.
    hodaranantksundaram
  • Reply 16 of 36
    dewmedewme Posts: 3,524member
    This one is a bit of a Pandora's box : " invitation for rules that could force social media platforms to host all customers regardless of their views"

    So ... this would seemingly include those whose views on social, ethical, sexual, moral, human rights, legal authority, religion, cats and dogs living together, etc., issues are several orders of magnitude removed from societal norms. Sure, I know that at an abstract and ideological level we are all responsible for applying our own filters and tuning out or turning off those media feeds that we personally find ridiculous, offensive, or purely whackadoodle. But at the same time, this experiment-in-process we call human society is highly imperfect and we have to make the best out of the situation and keep putting guardrails on our highways to save ourselves from our own stupidity.

    Perhaps something akin to TV public access channels are needed within these social media ecosystems to corral all of the fringe cases into their own playground. But they can already do that using standard web and BBS technology. They could start their own web site to glorify their own beliefs and push their own views. This of course requires a little bit of work ... which leads me back to my primary beef about all of these attempts to nationalize what are are currently private platforms. It's pure laziness and unwillingness to build something yourself that is the root cause of the problem. Nobody wants to do the real work to create what Facebook, Google, Apple, Amazon, have already created. They'd rather use the legal system to hijack someone else's platform and subscriber base for their own use rather than doing the hard work of building their own platform from the ground up.

    Finally, and to add to the laziness theme, media platforms of the past always owned/licensed some scarce resources that were difficult and/or costly to acquire, i.e., radio, TV, and cellular spectrum. Because these physical resources were finite it made sense to allow others access through things like public access television (not to be confused with non-profit public broadcasting like PBS/NPR). What finite resources do Facebook, Google, or Apple control? None that I can think of.  Anyone can replicate what Facebook has done. Politicians and SCOTUS members who believe that Facebook or Google are "common carriers" must somehow view Facebook's user base as essentially a "human spectrum" that needs to be shared by whatever entities want access to it. This is the only abstract analogy that I can think of that puts a platform like Facebook or Apple's App Store at the same level as a telecom carrier or TV station - the notion that Facebook's subscriber base, or access to its subscriber base, is "spectrum" that needs to be divided up and sold - as "human access bandwidth." All I can say, is if I'm being sold as a resource, I want a cut of the action.  To be clear, people who are bringing these cases to the Supreme Court are not individual subscribers who want to participate in the platform. These are publishers who are broadcasting their content into a swath of the human access bandwidth they want to control. They are grabbing spectrum.

    This issue will not go away on its own. My hope is that it gets discussed and debated in a rational and logical forum.
    edited April 5 DAalsethroundaboutnowmuthuk_vanalingam
  • Reply 17 of 36
    zimmiezimmie Posts: 500member
    entropys said:
    Attacking the messenger rather than the message is rather unedifying.
    If the message were not utterly incoherent, sure. As it is, Clarance Thomas is basically a case study proving a human can survive with tapioca where his brain should be.

    You want to know why his position is so worthless as to not even be worth engaging at any serious level?
    dewme said:
    ... But they can already do that using standard web and BBS technology. They could start their own web site to glorify their own beliefs and push their own views. This of course requires a little bit of work ...
    Ding ding ding! Twitter bans you?

    Make your own platform. That is the remedy available to you.

    Banning users is a form of speech. Twitter, a private company, banning users is not censorship, because Twitter is not the government. To provide another remedy (such as prohibiting Twitter from banning users) would be the government controlling what Twitter is allowed to say, which is censorship, because the government is the government.

    If Twitter bans you and you don't want to build your own platform, go to Gab or Parler or Stormfront. In case you've never heard of that last one, it's an explicitly neonazi forum. Still exists, because they put in the work to keep it running. And if literal, Hitler-salute-throwing neonazis are able to find hosting, anybody else can too.

    This is like people whining "Why isn't there a straight pride parade?" Do you think parades just pop into existence? They're an enormous amount of work. Do the work, and you can have one!

    Building a social media platform is an enormous amount of work. Do the work, and you can have one with exactly the rules you want!
    edited April 5 gatorguyroundaboutnowbaconstangdewmemuthuk_vanalingamronn
  • Reply 18 of 36
    entropys said:
    ITGUYINSD said:
    bluefire1 said:
    Justice Thomas should be commended for recognizing the inherent danger of having put so much power in the hands of a few private entities. Back in the day, politicians never imagined that these private corporations, instead of being platforms for public opinion, became publishers, censoring whatever they decide is inappropriate, misinformation, or offensive. It is past time for Congress to either revisit Section 230 or have SCOTUS to do it for them.

    Don't newspapers and other media outlets (FOX, Newsmax, CNN, etc.) get to decide what they want to broadcast?  Aren't they then deciding what is inappropriate. what is misinformation or offensive and choose to call it out, or, as some do, portray it as real news?  I think they have MORE power than Twitter and FB.  If I don't like what Fox has to say, I have the freedom to watch a different news.  Anyone can choose to not use FB or Twitter if you don't like their content.
    Yes they do. But they are publishers, and are responsible for, and for example can be sued for content on their media.  A common carrier can’t be.
    But common carriers can deny service based on their terms/conditions. For example, how is an airline denying service to anyone not wearing a face covering any different from Facebook or Twitter denying service to anyone who posts an incitement to violence? Neither are discriminatory since they apply to anyone using the carrier. Changing the designation wouldn't have prevented certain conservative personalities from being banned from Facebook/Twitter since they were banned for terms/conditions violations. 
    MacProronn
  • Reply 19 of 36
    hodarhodar Posts: 335member
    zimmie said:

    Make your own platform. That is the remedy available to you.

    Banning users is a form of speech. 
    You mean like Parlor?  If I recall correctly, Amazon, Apple and Google worked in concert to eliminate the competition, and to prevent them from finding another internet provider.  Some would call that predatory anti-competitive behavior.  It was alleged for not moderating their content, however you will find similar violations on other platforms that are overlooked.

    Others would ask a simple question.  When was the last time a group of people who censored, burned books, used violence to shut down other points of view, who decided that they were the sole arbiters of what the "truth" was, considered the "Good Guys"?  

    It's not a trick question, feel free to refer to history.  I will simply quote Thomas Jefferson, who said "I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it."  (But what would he know?)
    anantksundaramentropyssmartburro
  • Reply 20 of 36
    fordeefordee Posts: 28member
    jimh2 said:
    It becomes a bigger problem with company creates an agenda dictated by them. 
    Why is that a problem? Fox News has done that for years…
    MacPro
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