GOPs, Libertarians Pick Apart Thomas’ Section 230, Common Carrier Opinion

Supreme Court Justice Clarence Thomas’ views on Communications Decency Act Section 230 contradict his prior positions and threaten free speech, conservative and libertarian tech observers said in interviews. The Supreme Court dismissed a lawsuit last week claiming President Donald Trump violated the First Amendment in 2017 when he blocked users from his Twitter account (see 2003230060). The high court remanded the case to the 2nd Circuit Court of Appeals with instructions to dismiss as moot (20-197) because the former president is no longer in office.

Thomas issued a concurring opinion, saying the Supreme Court should consider the dominant power of digital platforms controlling speech. The judiciary might consider treating platforms like common carriers, prohibiting them from blocking certain users regardless of content, he argued. It’s possible Section 230 violates the First Amendment when it preempts state law seeking to protect speech, he said, citing arguments from UCLA law professor Eugene Volokh. FCC Commissioner Brendan Carr raised a similar argument in a recent conversation with Volokh (see 2103300074).

The argument that the First Amendment could nullify Section 230 or similar statues is “troubling,” said Americans for Prosperity Vice President-Legal and Judicial Strategy Casey Mattox: “Constitutional originalists and textualists should be really concerned about the warping of the text of the First Amendment to try to impose obligations, instead of protecting freedom for private parties.” Mattox noted neither Thomas nor Volokh endorsed the state argument, but he said their positions could carry the wrong implications.

Historically, there’s legal precedent for declaring certain providers common carriers, said Competitive Enterprise Institute Center for Technology and Innovation Director Jessica Melugin. Politically, Thomas’ common carrier argument is remarkable because it contradicts the position he took in Turner Broadcasting v. FCC, said Melugin. Thomas argued then that forcing cable companies to carry local broadcasters’ channels for free is a First Amendment violation. “It would seem that he is making a big effort to get to a place where we can push aside these platforms’ First Amendment rights,” she said.

Mattox and TechFreedom President Berin Szoka said Thomas wasn’t briefed on the issues. “He’s just improvising,” said Szoka. “This is just not how Supreme Court justices are supposed to write opinions.” Social media platforms are far more like parades than cable networks, argued Szoka: Like parade organizers deciding who marches and how, platforms algorithmically rank, order and present a news-feed parade of user-generated content, he said. And just as parade organizers can exclude certain would-be marchers, social media moderators can control what content is allowed, he said.

Thomas’ argument raises the question of whether social media platforms are going to remain oblivious to the parallels between their calls for common carrier regulation of ISPs and their own market dominance, said Randolph May, president of the Free State Foundation: “They’ve been consistently in favor of common carrier regulation of the ISPs.” More competition for Big Tech could help calm some speech concerns, he said: “When you talk about more competition and consumer choice, it’s possible antitrust could be part of the solution.”

It’s an interesting dynamic when a conservative justice suggests platforms could be treated like common carriers, since most conservatives oppose the same treatment for broadband companies, said Access Partnership Director-Asia and U.S. Dileep Srihari. Thomas' Section 230 stance raises concerns from tech companies of varying size, said Srihari, particularly small and medium-size businesses.