Supreme Court Justice Clarence Thomas argued that tech platforms such as Twitter, Facebook, and Google should be regulated like utilities.
“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” Thomas wrote Monday. “The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
His statement comes in a concurrence alongside a Supreme Court decision to vacate a lower court’s ruling that former President Donald Trump violated the First Amendment rights of users he blocked on Twitter.
Thomas agreed in his concurrence that Trump’s Twitter account did “resemble a constitutionally protected public forum” in some ways, adding, “It seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.” Trump was permanently banned from Twitter following the storming of the Capitol on Jan. 6.
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Thomas argued some tech platforms are “sufficiently akin” to carriers such as telephone companies. If tech platforms were regulated like utilities, they could be forced to do away with moderation standards they currently use.
“A traditional telephone company laid physical wires to create a network connecting people,” Thomas wrote. “Digital platforms lay information infrastructure that can be controlled in much the same way.”
He went on to explain the scope of tech companies’ power, citing Facebook’s roughly 3 billion users.
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“It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail,” Thomas wrote. “But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.”
“We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms,” Thomas added.
