Supreme Court Justice Clarence Thomas speaks to the American Enterprise Institute for Public Policy Research in Washington, D.C., Feb. 13, 2001 (Image Source: AP Photo/Kamenko Pajic/American Public Media)
This week, United States Supreme Court Justice Clarence Thomas stated that Silicon Valley tech monopolies could be regulated like other public utilities – a move which could signal a radical shift in operations for the Chinese-style corporate censorship departments currently in operation at platforms like Google, Facebook and Twitter.
As one of the Court’s most senior and conservative voices, Justice Thomas made his remarks on this issue alongside a recent legal decision by a lower court ruling involving the termination of former President Donald Trump’s Twitter account.
“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,” said Thomas.
Thomas’ comments have been viewed as a warning shot across the bow of Silicon Valley and Mainstream Media outlets like CNN – both of who are dominated by the Democratic Party – and who have relied on their collective ability to coordinate political censorship and systematic deplatforming efforts designed to ‘disappear’ political opposition, particularly around the time of election.
Regulating online platforms like utilities would require fundamental changes to how tech platforms operate.
Depending on the specific contours of such regulation, social media sites could be forced to alter or do away with many of the moderation standards they use to keep harassment, hate speech and nudity off their platforms. That’s the opposite of what many Democrats have been fighting for, which is more liability for platforms that host certain types of objectionable or illegal content.
Twitter and Trump
The decision erased a federal appeals court ruling that Trump had violated the Constitution by blocking his critics from his Twitter account. The lower court had said Trump’s move effectively excluded citizens from viewing a public forum, in violation of their First Amendment rights.
The Supreme Court ordered the lower court to dismiss the case as moot now that Trump is no longer president. The action prevents the federal appeals court decision from serving as precedent for future cases.
Thomas’ concurrence signals the justice would be open to arguments that could require a fundamental change to how tech platforms function.
While he agreed that Trump’s Twitter account did “resemble a constitutionally protected public forum” in some respects, “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, referencing Twitter’s decision to remove Trump’s account from the platform following the Jan. 6 insurrection at the U.S. Capitol.
“Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service, to remove the account ‘at any time for any or no reason,’” Thomas wrote.
Thomas said the solution to the unprecedented issues presented by the tech platforms could lie “in doctrines that limit the right of a private company to exclude.”
It’s not the first time he’s indicated openness to the idea of upending the status quo of tech regulation.
In an October filing, Thomas wrote that it “behooves” the court to determine the “correct interpretation” of Section 230, the law that protects tech platforms from being held liable for their users’ posts or for how they choose to moderate and remove content. Thomas suggested the law had been too widely interpreted and that there is reason to reconsider its application…
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