Justice Thomas Argues Big Tech Be Regulated Like Utilities

U.S. Supreme Court Justice Clarence Thomas suggested that tech platforms be regulated like utilities, in a concurrence he wrote to a decision to vacate a lower court’s ruling about former President 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,” he wrote. Regulating such platforms like utilities could force them to make changes to current moderation policies against hate speech and harassment.

CNBC reports “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.” In the case before the Supreme Court, a lower court ruled that, by blocking his critics from following his Twitter account, Trump violated their First Amendment rights.

The Supreme Court ordered the “lower court to dismiss the case as moot now that Trump is no longer president,” thus preventing the federal appeals court decision “from serving as precedent for future cases.” Thomas pointed out that, “it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” referring to Twitter’s ban on Trump’s account.

According to Thomas, the solution might lie “in doctrines that limit the right of a private company to exclude.” CNBC adds that Thomas has previously “indicated openness to the idea of upending the status quo of tech regulation,” suggesting in October that Section 230 “had been too widely interpreted and that there is reason to reconsider its application.”

For the most recent ruling, Thomas was alone among the justices in submitting a concurrence, without an explanation from the majority, which “could be an indication that Thomas’ colleagues don’t share his reasoning, especially since Thomas is known for holding views that deviate from the rest of the court.”

NPR reports that, according to Columbia University Knight First Amendment Institute director Jameel Jaffer, “other courts have held that an elected official’s social media accounts can be treated as public forums … and so the dismissal is unlikely to affect the development of the law.”

Harvard Law School lecturer Evelyn Douek stated that Twitter’s ban of Trump “may just be the action that leads to a stripping of social media platforms’ legal protections,” adding that “it was terribly short-sighted of liberals to unquestioningly celebrate the unaccountable deplatforming of Trump.”

Thomas’ take on Section 230, however, has been met dubiously by some legal scholars. “I’m not sure what to make of how much support Justice Thomas’s reading of 230 has among the other eight Justices, particularly because they’ve denied [certiorari] in a few high-profile 230 cases recently,” tweeted lawyer Jeff Kosseff.