Dr. Clarence Thomas, along with Samuel Alito, considered the last constitutionalist justices of the Supreme Court, issued an opinion on April 5 warning that social media companies such as Twitter and Facebook need to be regulated as public utilities rather than private.
The judge issued his opinion in the case against former President Donald Trump, who was sued for blocking users who maliciously commented on his Twitter account.
In the previous instance, the Second Circuit Federal Court judge ruled against the former president, saying that as a public official, he could not deprive others of interacting with his tweets, as he was limiting their First Amendment rights. As a public official, the former president’s tweets were part of public information.
While agreeing with the ruling, Dr. Thomas noted that it was ultimately Twitter that banned Trump from its platform.
“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,” Thomas wrote.
Indeed, Trump’s blocking a few users did not represent a restriction on the free speech of those users, who could still read his tweets but not comment, but the outright expulsion from Twitter did.
“If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude,” said Dr. Thomas.
The judge’s arguments are based on the fact that a company providing a service where opinions are exchanged, such as social media, should be considered a public service and, as such, cannot deny access to anyone. In other words, they would cease to be protected by Section 230 of the Communications Decency Act.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speeches by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties,” the judge wrote.
While Dr. Thomas’s opinion is not a ruling with actual legal consequences as the case against Trump did not cover this aspect, it is a clear warning and rationale for ending selective censorship by the Silicon Valley giants.
“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,” the judge sentenced.
With Democratic control of both the House and Senate, and with large numbers of Democrat federal judges on the courts, it is hard to imagine Big Tech finally being legislated out, as their selective censorship favors the Democratic cause.