Respond to a petition on MondaySupreme Court Judge Clarence Thomas has established a comprehensive constitutional framework for regulating Twitter moderation, indicating that Thomas and other conservatives are eager to take action against social media platforms.
Thomas wrote in response to a case filed in 2017 by Columbia University’s Knight First Amendment Institute, claiming that President Trump violated the First Amendment by blocking critics on Twitter. A federal appeals court ruled in favor of the institute in 2019, and Biden’s White House has refused to challenge that ruling, making it pointless to pursue the case. But since an appeal was filed while Trump was still president, the court is formally obliged to respond.
While the dismissal has little legal significance, Justice Thomas used the case as an opportunity to address deeper issues facing social media platforms. Thomas’ response focuses primarily on Twitter’s decision to ban Trump from the platform in the wake of the Capitol riot.
Nearly every major platform banned then-President Trump in the wake of the Capitol uprising – including Facebook, YouTube, and Twitter – with most citing terms of service against using the platform to incite violence. No meaningful legal effort has been made to challenge the bans, but they remain politically controversial, especially among American conservatives.
Although the ban took place more than six months after the appeal ruling in the Knight case, Thomas is using it as a pretext to investigate the separate issue of how Congress or the courts could legally limit Twitter’s moderation powers to prevent such bans. in the future. Over 12 pages, Thomas outlines a detailed case for how lawmakers could restrict platform moderation without violating the First Amendment, using both the usual carrier designations and English common law rules on the right to exclude customers from public modifications.
Specifically, Thomas argues that lawmakers could use the scale and public nature of platforms such as Twitter to justify new moderation rules, similar to the way the Telecommunications Act prevents telephone companies from blocking certain people from telephone services. Failing that, lawmakers could draft a statute similar to the public adaptation clause of the Civil Rights Act, which prevents hotels and restaurants from blocking service based on race or creed.
“Even if digital platforms are not close enough to mainstream providers, the legislator can still treat digital platforms as public accommodation,” continues Thomas. “The similarities between some digital platforms and common carriers or places of public accommodation can provide lawmakers with strong arguments to regulate digital platforms in the same way.”
It’s not the first time Thomas has used a technology-related petition as an opportunity to call for social media regulation. In OctoberThomas launched a similar appeal to reduce the protections afforded by Section 230, in a similar motion denying a petition to hear a malware case.
In particular, cites Thomas’ most recent argument a legal article by Adam Candeub, Michigan state professor who served at the Ministry of Commerce under Trump. Candeub was featured in drafting an NTIA petition Reform Section 230 through the regulatory process, which would have positioned the FCC as the de facto regulator of social media platforms.