Justice Clarence Thomas won praise from leaders of the populist wing of the Republican Party after he took aim at social media companies in a Monday Supreme Court opinion.
“Great,” tweeted author J.D. Vance, who is eyeing an Ohio Senate run, after Thomas advocated for greater social media regulation.
Thomas’s opinion, a concurrence in a case concerning former President Donald Trump’s Twitter usage, took issue with the way that Twitter, Facebook, and other social media companies handle speech on their platforms. While Thomas agreed with the rest of the court that questions about Trump’s Twitter usage are moot, he stressed that in the near future, the court must address social media regulation.
Thomas focused on Twitter’s ban on Trump, arguing that the move raised the stakes for Twitter to prove that it is a public platform. Thomas noted that Trump faced a lawsuit after he blocked a few people using his Twitter account because the platform is generally understood as a public forum. But at the same time, he added, Twitter was able to remove Trump from the platform, which amounted to a block “barring all Twitter users from interacting with his messages.”
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Twitter’s user agreement permits it to remove users, but the Trump case highlights how such arrangements become difficult to navigate if the platform is truly a public forum, Thomas wrote. He suggested that if part of the problem is “private, concentrated control over online content and platforms available to the public,” then a possible solution is “doctrines that limit the right of a private company to exclude” figures such as Trump.
Thomas took a more broad aim at technology companies, saying that they act as gatekeepers over the internet, which leads to speech suppression. The suggestion that the federal government should treat platforms such as Twitter and Facebook as quasi-public utilities, long a goal of left-wing social critics, won popularity with insurgent populists, many of whom have raised new concerns about online speech regulation.
Missouri Sen. Josh Hawley cited Thomas’s observation that Google facilitates 90% of internet searches, which Thomas said allows it to “suppress content by deindexing or downlisting a search result or by steering users away from certain content.” Hawley, who has championed social media regulation, tweeted that Thomas was warning about the “the dangers of #BigTech concentration for free speech.”
The case, Knight First Amendment Institute v. Trump, arose in 2017 after several Twitter users claimed that Trump had violated their First Amendment rights by blocking their accounts. They argued that although Trump tweeted from his personal account, he used it in a presidential capacity, making Twitter a public forum. The plaintiffs argued that every Trump tweet was an “official statement.”
A New York judge in 2018 ruled that Trump’s blocks were unconstitutional. The Supreme Court sent the case back to a lower court to be declared moot, with only Thomas commenting on the unsigned order.
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Thomas’s opinion also met approval from Ethics and Public Policy Center President Ryan Anderson, who recently had his book about transgender debates delisted from Amazon. He pointed out that Thomas included the online shopping giant in his list of companies that need greater government oversight.
“We need more legal thinkers like Justice Thomas,” Anderson said.
