The decision by social media giants Twitter and Facebook to ban former President Donald Trump from their platforms appears to have drawn the ire of one of America’s most prominent jurists: Justice Clarence Thomas.
As the Supreme Court issued an order Monday declaring moot a lawsuit over Trump’s blocking of some Twitter users from commenting on his feed, Thomas weighed in with a 12-page lament about the power of social media firms like Twitter.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is control of so much speech in the hands of a few private parties,” Thomas wrote. “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.”
Noting that Trump had 89 million followers at the time he was banned in January, Thomas singled out the owners of Google and Facebook by name, arguing that the firms are currently unaccountable personal fiefdoms with massive power.
“Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin),” Thomas wrote.
Thomas’ opinion amounts to an invitation to Congress to declare Twitter, Facebook and similar companies “common carriers,” essentially requiring them to host all customers regardless of their views. At the moment, the companies have sweeping authority to take down any post and to suspend or terminate any account.
The George H.W. Bush appointee’s complaints dovetail with those of Republican lawmakers and conservative activists who say big social media firms employ double standards that block or obscure more of the content they post when compared to posts by Democrats. The firms say they’re trying to prevent-real world harms caused by people advocating for violence or circulating misinformation on life-or-death topics like coronavirus.
Twitter took down a series of Trump posts over election-fraud following the Nov. 3 vote, but imposed a “permanent suspension” on him two days after Trump supporters rioted and stormed the Capitol in early January. Thomas made no mention of that event in his opinion, nor did he discuss Twitter’s rationale for kicking Trump off the platform.
Thomas’ opinion was prompted by the high court’s decision not to review an appeals court ruling that concluded Trump violated the First Amendment by blocking some Twitter users he disagreed with from replying to his posts. Thomas said the appeals court’s decision finding Trump’s account to be a public forum had some merit, but the platform’s move to shut down Trump altogether undermined that conclusion.
“It seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” the justice wrote. “Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service, to remove the account ‘at any time for any or no reason.’ Twitter exercised its authority to do exactly that.”
Thomas also suggested that the social media firms could be subject to regulation as public accommodations, although they are already covered by state and federal anti-discrimination laws. The justice didn’t elaborate much on that argument, but he hinted that the platforms’ First Amendment rights could be limited much as business owners can be forced to accept customers regardless of race or religion.
Thomas said a major protection for internet firms, known as Section 230, underscores the role of social media companies as common carriers. He also argued that some courts are abusing that provision to immunize “bad-faith” decisions to remove content posted by third parties.
While Thomas’ complaints do track closely with those of Republicans, the GOP is not alone in its concerns about big tech.
Last month, Sen. Bernie Sanders (I-Vt.) — one of the most liberal voices in Congress — said he, too, was wary of Twitter’s decision to ban Trump.
“You have a former president in Trump, who was a racist, a sexist, a xenophobe, a pathological liar, an authoritarian, somebody who doesn’t believe in the rule of law. This is a bad-news guy,” Sanders said on a New York Times podcast. “But if you’re asking me, do I feel particularly comfortable that the then-president of the United States could not express his views on Twitter? I don’t feel comfortable about that.”
Sanders said he wasn’t sure how the issue should be resolved, but letting a few tech titans decide who should be able to use their platforms seemed unwise.
“Yesterday it was Donald Trump who was banned, and tomorrow, it could be somebody else who has a very different point of view,” the Vermont senator said. “I don’t like giving that much power to a handful of high-tech people.”