Notable
>https://arstechnica.com/tech-policy/2021/04/clarence-thomas-blasts-section-230-wants-common-carrier-rules-on-twitter/
April 5, 2021
The US Supreme Court today vacated a 2019 appeals-court ruling that said then-President Donald Trump violated the First Amendment by blocking people on Twitter. The high court declared the case "moot" because Trump is no longer president.
For legal observers, the ruling itself was less interesting than a 12-page concurring opinion filed by Justice Clarence Thomas, who argued that Twitter and similar companies could face some First Amendment restrictions even though they are not government agencies. That's in contrast to the standard view that the First Amendment's free speech clause does not prohibit private companies from restricting speech on their platforms.
Thomas also criticized the Section 230 legal protections given to online platforms and argued that free-speech law shouldn't necessarily prevent lawmakers from regulating those platforms as common carriers. He wrote that "regulation restricting a digital platform's right to exclude [content] might not appreciably impede the platform from speaking."
First Amendment
Thomas doesn't seem to be arguing for a wide-ranging application of the First Amendment to all online moderation decisions. Instead, he wrote that free-speech law could apply "in limited circumstances," such as when a digital platform blocks user-submitted content "in response to government threats."
"Because of the change in Presidential administration, the Court correctly vacates the Second Circuit's decision," Thomas wrote. "I write separately to note that this petition highlights the principal legal difficulty that surrounds digital platforms—namely, that applying old doctrines to new digital platforms is rarely straightforward. Respondents [the Twitter users who sued Trump] have a point, for example, that some aspects of Mr. Trump's account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it."
The Trump case didn't give the Supreme Court a chance to rule on the questions Thomas raised, but he is hoping that future cases will provide such an opportunity:
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.
US Rep. Ted Lieu (D-Calif.) blasted Thomas' opinion. "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," Lieu wrote on Twitter.
"That Justice Thomas has… idiosyncratic.. views about the First Amendment is not exactly news," wrote Stephen Vladeck, a professor at University of Texas School of Law who has argued before the Supreme Court. "That none of his conservative colleagues saw fit to join his concurrence in the Twitter case is probably the bigger story, at least for now."
Trump “had only limited control of the account”
Twitter's decision to permanently remove Trump from the platform (for inciting violence) demonstrated that Trump himself "had only limited control of the account," Thomas wrote.
"The disparity between Twitter's control and Mr. Trump's control is stark, to say the least," Thomas wrote. "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.'"
Thomas acknowledged that private entities usually aren't constrained by the First Amendment but added that the First Amendment may apply on a private company's online platform "if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint."