Supreme justice suggests treating Twitter and Facebook as utilities so they can be regulated

In a concurring opinion Monday, Supreme Court Justice Clarence Thomas said social-media companies have too much power over public speech, suggesting they be treated as utilities so they can be regulated by the government.

The solo opinion came in the court’s dismissal of a case over former President Donald Trump’s efforts to block critics from his personal Twitter account.

Thomas said a few private companies, such as Twitter and Facebook, have the power to “cut” free speech, warning that the Supreme Court will soon need to address the issue.

The high court ruled the case against Trump is moot because he is no longer president and Twitter permanently banned his account.

“This is not the first or only case to raise issues about digital platforms,” Thomas wrote. “While this case involves a suit against a public official, the court properly rejects today a separate petition alleging that digital platforms, not individuals on those platforms, violated public accommodations laws, the First Amendment, and antitrust laws.”

Thomas said the petitions highlight two important facts.

“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties,” he said.

“We will soon have no choice but to address how our legal doctrines apply to highly concentrated, private owned information infrastructure such as digital platforms.”

Another case addressing the issue was brought by conservative activist and political candidate Laura Loomer, alleging Big Tech companies are discriminating against conservatives in violation of the U.S. Constitution. The antitrust case was distributed for conference for weeks but ultimately was not accepted by the high court. It argued the social media companies’ platforms are a “place of public accommodation,” meaning they are not allowed to censor conservative content.

In his opinion, Thomas explained that while a Twitter user can remove a few people from a conversation, “Twitter can remove any person from the platform – including the president of the United States – ‘at any time for any or no reason.'”

The Second Circuit Court of Appeals had ruled against Trump, claiming that while he was president he used his Twitter account to discuss political matters, meaning anyone who commented on his tweets was engaging in a public forum protected by the First Amendment. The court reasoned, therefore, that Trump’s blocking of any opinions was unconstitutional viewpoint discrimination.

Thomas acknowledged 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,” he said.

Thomas pointed out that the First Amendment frequently does not apply to times and places under the control of a “private party.”

“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.”

He said a solution could be to determine that the platforms are “common carriers,” like a telephone network.

“This court long ago suggested that regulations like those placed on common carries may be justified, even for industries not historically recognized as common carriers, when ‘a business, by circumstances and its nature … rise[s] from private to be of public concern.'”

Some companies, he said, carry out functions “that the state has traditionally undertaken” and are in a category “distinct from other companies,”

“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers.”

He said the fact that there are “no comparable competitors” to Facebook and Google means “the industries may have substantial barriers to entry.”

“Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin).”

Because of that, they have “enormous control over speech.”

Thomas warned:

When a user does not already know exactly where to find something on the Internet—and users rarely do—Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. … Facebook and Twitter can greatly narrow a person’s information flow through similar means. And, as the distributor of the clear majority of e-books and about half of all physical books, Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing. It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.

He said legislatures might also treat those platforms as places of public accommodation.

“Although definitions between jurisdictions vary,” he said, “a company ordinarily is a place of public accommodation if it provides ‘lodging, food, entertainment, or other services to the public . . . in general.’ Twitter and other digital platforms bear resemblance to that definition,” he wrote.

“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.”

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