Content Moderation

Justice Thomas Gives Congress Advice on Social Media Regulation

By Abby Lemert, Klaudia Jaźwińska
Monday, April 12, 2021, 4:21 PM

In a one-paragraph opinion issued on April 8, a unanimous Supreme Court vacated the judgment by the U.S. Court of Appeals for the Second Circuit that the comments threads of former President Trump’s Twitter account constituted a public forum. The Supreme Court sent the case back to the Second Circuit, ordering that it be dismissed as moot since Trump is no longer in office. (The court discreetly failed to mention that the former president has also been banned from that particular platform indefinitely.) In a 10-page concurrence, Justice Clarence Thomas agreed with the decision to vacate—and said much more.

The case, renamed Biden v. Knight First Amendment Institute after the new president took office, concerned whether former President Trump could lawfully block users who disagreed with him on Twitter. In the vacated opinion, the Second Circuit had held that Trump used his Twitter account in ways that turned its comments threads into a “public forum,” triggering First Amendment protections for American Twitter users and users in the U.S. who seek to comment on Trump’s tweets. Thus, the lower court prohibited Trump from blocking Twitter users who disagreed with him, reasoning that the blocks restricted their speech by preventing them from retweeting or commenting on Trump’s tweets.

But as of the Supreme Court’s holding in Biden v. Knight Institute, that previous Second Circuit holding has been erased, preventing any future litigants from relying on it as precedent. The court deliberated the case at 11 consecutive conferences before issuing its short decision, perhaps signaling disagreement among the justices, or perhaps simply to give Thomas time to pen his lengthy concurrence.

The Knight Institute is confident that lawyers will be able to continue making legal arguments similar to the precedent vacated by SCOTUS, since other courts including the Fourth Circuit have already ruled similarly on government officials’ social media use. But the bigger story in the Supreme Court ruling is Thomas’s concurrence, which no other justice joined. Although Thomas’s opinion responds to the core legal question of the constitutional limits on government officials’ use of social media, the justice also offers his thoughts on a much broader swath of platform regulation. 

Thomas is known for his idiosyncratic views on the First Amendment and forceful solo concurrences, so the appearance of this one is not immensely surprising. Steve Vladeck noted that the bigger story is perhaps that Thomas couldn’t convince even a single colleague to join him, even after 11 consecutive conferences spent on the case. 

As a concurrence, Thomas’s opinion has no precedential weight and is unlikely to have any immediate legal consequences. However, the breadth and salience of topics he covers, including reform of Section 230 of the Communications Decency Act, are likely to inspire and shape ongoing efforts by members of Congress to regulate digital platforms. His comments, in line with long-standing dissatisfaction among conservatives over content moderation, led some commentators to call it “the concurrence that launched a thousand op-eds.” The following sections of this post attempt to distinguish what Thomas had to say about the actual legal question in the case (whether the comments threads of government officials’ social media accounts can be public forums) versus his broader opinions on Section 230 reform and platform regulation.

Justice Thomas on Trump’s Twitter as a Public Forum 

In his concurrence, Thomas agrees with the full Supreme Court that vacating the Second Circuit’s decision was the right thing to do in light of the changed presidential administration. He writes separately, he says, to explore the Second Circuit’s intuition that Trump’s Twitter was a public forum. In his view, there are a few obstacles to classifying Trump’s Twitter account as a straightforward public forum under existing First Amendment doctrine. 

Although Trump often spoke in his “official capacity” on his Twitter and made his account accessible to all users—characteristics common to public forums—it was Twitter, not Trump, that maintained ultimate control over his account, Thomas writes. Because public forums are described as “government-controlled spaces,” he argues, the Second Circuit’s analogy to public forum doctrine breaks down. In spaces ultimately controlled by private actors, like Twitter, the First Amendment is implicated only when the government maintains power over “the avenues for speech.” 

Thomas likened public officials’ use of private social media platforms to government officials’ use of space in a private hotel. If a government agency “leases a conference room in a hotel to hold a public hearing about a proposed regulation,” the government certainly may not kick out participants who express concerns about that regulation. However, “government officials who informally gather with constituents in a hotel bar” may ask the hotel to remove unruly patrons who crowd others out of the conversation. The difference, according to Thomas, “is that the government controls the space in the first scenario, the hotel, in the latter.”

Here, as Thomas notes, Twitter maintained ultimate control over the avenues of speech. If First Amendment rights to speak in a public forum are infringed by Trump’s decision to block a few users, Thomas argues, these rights would be far more seriously infringed by Twitter’s decision to ban Trump entirely. Thus, the Second Circuit’s conclusion that Trump had violated users’ First Amendment rights by banning them seems “rather odd” in light of Twitter’s “unrestricted authority to do away with” Trump’s account altogether.

Justice Thomas on Section 230 Reform and Platform Regulation

Having concluded that public forum doctrine isn’t a smooth fit for the “problem” of “private, concentrated control over online content and platforms,” Thomas discusses two existing legal doctrines that would allow additional regulation of private platforms. The first, “common carrier” laws, impose special duties to accept “all comers” and in return grant certain legal immunities to private entities that transport information, people or goods. Historical examples of common carriers include railroads and telegraph, telephone, and internet service providers.

To qualify as a common carrier, the service offered by a company must be “of public interest,” and in many cases, the company must have dominant market power. Common carriers are subjected to more regulation than other companies, most notably the requirement that they “serve all customers alike, without discrimination.” In exchange for imposing these requirements, the government bestows related legal privileges on common carriers, such as immunity from defamation lawsuits and special protections from competitors. 

Thomas argues that digital platforms are analogous to common carriers. Like traditional common carriers, he writes, digital platforms “carry information from one user to another[,]” “focus on distributing the speech of the broader public[,]” and dominate the market, creating high barriers to entry for competitors. Thomas flags the fact that Google functions as the “gatekeeper” between internet users and online speech 90 percent of the time, and that Amazon, the distributor of a majority of all e-books and physical books, could impose “cataclysmic consequences” by blocking a book.

The “answer” for “dissatisfied platform users[,]” Thomas says, may be subjecting digital platforms to common carrier regulations. Restricting digital platforms’ “right to exclude” through common carrier laws would indeed increase relative government control over officials’ social media accounts, perhaps enough to turn those accounts into true public forums. But Thomas argues that a valid common carrier analysis would have to examine Twitter’s market power or identify existing common carrier statutory restrictions on Twitter’s “right to exclude,” neither of which the Second Circuit did. (It’s clear that the Second Circuit was not reasoning within a common carrier framework when it did its public forum analysis, so the lower court had no reason to consider the questions of market power Thomas raised here.)

The second doctrine that would allow regulation of private digital platforms, Thomas writes, is the doctrine of “public accommodations.” Public accommodations are similar to common carriers but do not “carry” any products or information from one location to another. Instead, public accommodations are places that provide services, such as food or entertainment, to the general public. While Twitter and other social networking sites arguably provide analogous services, Thomas notes that there is debate over whether public accommodations can extend beyond the physical realm. Even assuming they can, he writes, no existing public accommodation laws or regulations were implicated by this case.

Thomas concludes by highlighting that while Congress has afforded social media companies certain legal privileges, notably immunity from some liability under Section 230, it has not subjected them to parallel legal restrictions. He suggests that common carrier and public accommodation provisions could serve as the “principal means for regulating digital platforms.” He hints that leaning into the common carrier and public accommodations analogies “may give legislators strong arguments for similarly regulating digital platforms” without triggering heightened First Amendment scrutiny by courts. But noting that Congress hasn’t yet imposed such common carrier regulations on social media companies, Thomas leaves the door open to examine these “interesting and important questions” another day.

Potential Implications of Justice Thomas’s Concurrence on Section 230 Reform

Thomas’s focus on common carrier and public accommodations laws might be used to defend Section 230 against the growing calls for reform coming from both sides of the political aisle. The statute shields online platforms from full legal liability for content posted on their sites by users. Traditionally, common carriers get immunity from civil liability for the speech they carry—the same kind of immunity that Section 230 confers. However, as Thomas notes, Congress hasn’t yet subjected social media platforms to any requirement to serve  “all comers” of the sort typically imposed on common carriers.

By Thomas’s logic, Section 230 immunity could survive as a “carrot” for social media platforms if lawmakers designate them as common carriers and impose associated regulations. Congress could do this, he suggests, without raising constitutional problems. This is a potentially startling rereading of the past few decades of First Amendment jurisprudence, which has given private property owners wide latitude to exclude speech from their property.

The reform proposal that aligns most closely with Thomas’s interpretation of social media companies as common carriers and public accommodations is Sen. Josh Hawley’s now-inactive Ending Support for Internet Censorship Act. The bill would require companies to obtain Section 230 immunity certifications from the Federal Trade Commission if they could prove they did not moderate user content in a “politically biased” manner. 

But the common carrier metaphor is not the only comparison that legal thinkers and policymakers have relied on in proposing new platform regulations. While Thomas asserts that social media networks are “at bottom communications networks,” which leads him to the common carrier model, the function and role of social media platforms in society is multifaceted. 

Amplification and personalization algorithms, which serve to drive engagement, lie at the core of platforms’ business models. It is these algorithms, rather than user choice, that determine the content that lands at the top of users’ social media feeds, giving platforms some publisher-like powers. Other equally apt descriptions of platforms’ power and business models have led policymakers to analogize to other legal regimes, such as antitrust, communications decency, and privacy and data protection.

There is concern among commentators that Thomas’s exclusive focus on the common carrier metaphor minimizes alternative framings of social media companies’ role in society. Platforms like Facebook, Instagram, Twitter, and YouTube have been variously compared to marketplaces, classifieds, publishers/editors, data brokers and, in some cases, internet service providers. Each of these comparisons creates natural analogies to different bodies of law, and each could point lawmakers toward distinct regulatory approaches. 

Perhaps Thomas’s opinion might encourage conservatives in Congress to focus on common carrier or public accommodations approaches—which, after Thomas’s concurrence, might seem to be the platform governance reforms most likely to survive judicial scrutiny. Yet, many of the proposals to amend Section 230 take a more multifaceted approach, incorporating various alternative, non-common carrier framings.

It’s worth highlighting again that Thomas was unable to convince any other justices to sign on to his opinion, even among his five conservative colleagues. SCOTUS does not appear convinced, at least not yet, that the common carrier and public accommodation approaches to platform regulation are the best solutions for passing constitutional muster. 

For now, the important question about this concurrence doesn’t seem to be whether other justices agree with Thomas, but whether Republicans in Congress and state houses around the country follow his reasoning and introduce proposals for regulation along the lines Thomas proposes.

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