from the supreme-Quart-justice dept
Today was a weird one for Justice Thomas. Along with his bizarre and confusing dissent in the Oracle/Google case, he has done another one of his random walks down conspiracy theory nonsense lane on an unbriefed issue in which he gets to, once again, attack the 1st Amendment. He's done this a few times now. Two years ago he did this in writing an unprovoked attack on the 1st Amendment regarding NY Times v. Sullivan. Last year, he did it with an unprovoked and bizarre attack on Section 230. And now he's done it again.
Today, the Supreme Court declined to hear an appeal on the Knight 1st Amendment Center case, in which both the District Court and the Appeals Court made it clear that when a government official, using social media in an official capacity, allows replies on a posting (such as a tweet), they are creating a public forum in that space, and therefore cannot engage in viewpoint discrimination -- including blocking individuals for speech they disagree with.
A bunch of very confused and clueless people have (incorrectly) taken to arguing that this somehow means that Twitter itself is a "public forum" and cannot moderate content. That has always been very, very wrong. The courts were clear that they were only talking about the space beneath a public official's statements. The simplest way to think of it is this: If the government rents out an event hall to let the President give a speech, it cannot engage in viewpoint discrimination in blocking people from coming into the hall to hear the speech. That does not mean the event hall itself is now permanently a public forum, or that the event hall owners cannot block people they have banned from their property from attending the speech, or any other events.
And, basically, the argument has stayed with very confused and clueless people... until today, when Justice Thomas decided to put it front and center. It's hard to state how ridiculous this is. Not for the first time, Justice Thomas seems to have become the old cranky uncle who believes in conspiracy theory nonsense. Everything about what he writes here would fit more neatly into a Breitbart comment section or an OANN rant. That it's coming from a Supreme Court Justice is just crazy. Let's break this down bit by bit.
Respondents 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.
Again, it does not seem odd at all. It's how it usually works. It's how it works in my example above, when the government makes use of a private forum. Private forums have their own property rights, in the same way that, say, a private baker can choose not to print a message it disagrees with on a cake, but the government itself could not write a law preventing that baker from printing protected messages on cakes. The whole nature of our Constitution is kinda based on the fact that the government has limited authority. It's bizarre that Thomas argues it's "rather odd" to say that the government has less authority than private entities. That's how it's always been.
The disparity between Twitter’s control and Mr. Trump’s
control is stark, to say the least. 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
Again, this is exactly how it has always worked. A private building owner can choose not to rent to the President to give a speech. But if they do rent, the President cannot block attendees based on their viewpoints. This isn't difficult.
Thomas then goes on a long Fox News-style rant about how the big internet companies have too much power, and that the Supreme Court will need to rule on that at some point. He suggests -- again, despite no briefing or oral arguments on this matter, but clearly influenced by nutty conspiracy theorists -- that it could be argued that sites like Twitter are common carriers or subject to public accommodation rules. Again, this is heard quite frequently among the conspiracy theory Trumpist set, but no serious legal analysis has suggested this is even remotely accurate.
The long history in this country and in England of
restricting the exclusion right of common carriers and
places of public accommodation may save similar regulations today from triggering heightened scrutiny—especially
where a restriction would not prohibit the company from
speaking or force the company to endorse the speech. See
Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622,
684 (1994) (O’Connor, J., concurring in part and dissenting
in part); PruneYard Shopping Center v. Robins, 447 U. S.
74, 88 (1980). There is a fair argument that some digital
platforms are sufficiently akin to common carriers or places
of accommodation to be regulated in this manner.
In many ways, digital platforms that hold themselves out
to the public resemble traditional common carriers.
Though digital instead of physical, they are at bottom communications networks, and they “carry” information from
one user to another. A traditional telephone company laid
physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be
controlled in much the same way. And unlike newspapers,
digital platforms hold themselves out as organizations that
focus on distributing the speech of the broader public. Federal law dictates that companies cannot “be treated as the
publisher or speaker” of information that they merely distribute. 110 Stat. 137, 47 U. S. C. §230(c)
The analogy to common carriers is even clearer for digital
platforms that have dominant market share. Similar to
utilities, today’s dominant digital platforms derive much of
their value from network size. The Internet, of course, is a
network. But these digital platforms are networks within
that network. The Facebook suite of apps is valuable
largely because 3 billion people use it. Google search—at
90% of the market share—is valuable relative to other
search engines because more people use it, creating data
that Google’s algorithm uses to refine and improve search
results. These network effects entrench these companies.
Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total,
$40.3 billion in net income—would induce new entrants
into the market. That these companies have no comparable
competitors highlights that the industries may have substantial barriers to entry.
There's a hidden dig at Section 230 at the end of that second paragraph above -- though one that completely misunderstand the nature of 230 and falsely suggests that it was intended to make these platforms act like common carriers (which is the exact opposite of the stated intention of the drafters of 230).
There's also a weird (and confusing) dig at Mark Zuckerberg, Larry Page & Sergey Brin -- claiming (incorrectly) that Zuckerberg has full control over Facebook and Brin & Page control all of Google.
To be sure, much activity on the Internet derives value
from network effects. But dominant digital platforms are
different. Unlike decentralized digital spheres, such as the
e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person
controls Facebook (Mark Zuckerberg), and just two control
Google (Larry Page and Sergey Brin). No small group of
people controls e-mail.
That's... not quite right. There is, again, a kernel of truth in the idea that siloed services are different than protocol-based distributed services. That's a point I make all the damn time. But the conclusion elides (1) how protocols are actually managed and (2) how much control those three individuals actually have. It is true that those three have special voting power over their shares, but that does not give them the level of control that Thomas suggests. This also ignores the fact that in the last few years -- despite Thomas' claims -- we have seen competitors springing up over and over again.
Then we get to the bit that is getting a ton of attention today. Thomas argues in a footnote that Section 230 itself might violate the 1st Amendment. We first saw this insane argument -- and debunked it -- a few months ago. It has no basis in reality. Yet here's Thomas:
For similar reasons, some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to
the extent those provisions pre-empt state laws that protect speech from
private censorship. See Volokh, Might Federal Preemption of SpeechProtective State Laws Violate the First Amendment? The Volokh Conspiracy, Reason, Jan. 23, 2021. According to that argument, when a
State creates a private right and a federal statute pre-empts that state
law, “the federal statute is the source of the power and authority by
which any private rights are lost or sacrificed.” Railway Employees v. Hanson, 351 U. S. 225, 232 (1956); accord, Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 614–615 (1989).
There are all sorts of oddities here. First, the citation of Eugene Volokh's piece entitled Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment?. Not that I'm against the Supreme Court randomly citing smart blog posts from thoughtful commentators, but it's still... a little weird. And if you actually read Volokh's piece, which itself is a response to the Vivek Ramaswamy and Jed Rubenfeld Wall Street Journal op-ed that I mentioned above, it seems fairly skeptical of the idea that 230 could possibly violate the 1st Amendment. Instead, it's trying to set out the strongest possible argument for that, which Volokh seems to make reluctantly for the sake of argument, noting multiple times that he doesn't necessarily agree with it, and it relies on a Supreme Court ruling that he believes is incorrect.
But the biggest oddity of all is... what the fuck is he actually trying to say here? His argument is that 230 might be unconstitutional because it might "pre-empt state laws that protect speech from private censorship." Beyond putting a shiny gloss on Volokh's argument, private censorship is allowed. That's kind of important. I mean, Thomas wrote a whole concurrence in the Masterpiece Bakeshop case arguing this very point... in the other direction.
Either way, this is now the third time in which Justice Thomas has randomly mused about free speech in a way that seems designed to attack social media and in line with the nutty conspiracy theories seen on Fox News/OANN/Breitbart. It's almost as if he's living in a weird alternative reality bubble and disconnected from the real world. While he mentions it in passing in his weird dissent, he might want to actually reread the Halleck decision which he signed onto, and which makes it quite clear that private companies can moderate content how they see fit on their platforms.
Unfortunately, though, as with his last two random outbursts on these issues, it's likely we're going to see lots of confused and ignorant people citing Thomas' random unbriefed musings as proof that their nonsense has legitimacy.
Filed Under: 1st amendment, clarence thomas, content moderation, free speech, section 230
Companies: twitter
