Supreme Court argument casts doubt on Facebook, Twitter free speech rights
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
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.
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.
Comments
But Fox doesn't like "Cancel Culture"
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.
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.
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?
You want to know why his position is so worthless as to not even be worth engaging at any serious level?
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!
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?)