from the not-how-any-of-this-works dept
Last week, we had a post about Supreme Court Justice Clarence Thomas’ very weird statement in a concurrence on mooting an unrelated case, in which he seemed to attack free speech and Section 230. Law professor Eric Goldman has written up an incredibly thorough response to Thomas’ statement that we thought the Techdirt community might appreciate, and so we’re reposting in here.
Last week, the Supreme Court vacated the Second Circuit?s Knight v. Trump ruling. The Second Circuit held that Trump violated the First Amendment when he blocked other Twitter users from engaging with his @realdonaldtrump account. Other courts are holding that government officials can?t block social media users from their official accounts, but they can freely block from personal or campaign accounts. Vacating the Second Circuit opinion probably won?t materially change that caselaw.
That outcome was overshadowed by a concurring statement from Justice Thomas wherein he again embraced censorship. I blogged a similar statement from Justice Thomas from the October 2020 cert denial of Enigma v. Malwarebytes. That time, Justice Thomas criticized Section 230 by addressing topics he wasn?t briefed on and clearly did not understand. This time, his statement is even more unhinged and disconnected from the case at issue. It?s clear Justice Thomas feels free to publish whatever thoughts are on his mind. This is what bloggers do. I think he, and all of us, would benefit if he moved his musings to a personal blog, instead of misusing our tax dollars to issue official government statements.
Justice Thomas? statement ends (emphasis added):
As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. 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. This petition, unfortunately, affords us no opportunity to confront them.
So Justice Thomas acknowledges he wasn?t briefed on any of the interesting topics he wanted to discuss. He?s just making stuff up. This isn?t what Supreme Court justices do, or should do. I?m a little surprised that his colleagues haven?t publicly rebuked him for writing free-association statements. Such statements hurt the court?s credibility and abuse the privilege afforded Supreme Court justices.
Justice Thomas starts with an apparent contradiction he positions as a gotcha. The Second Circuit said that Trump created a public forum on Twitter, so Justice Thomas wonders how that could be when Twitter could unilaterally shut down that public forum. He says public forums are ?government-controlled spaces,? but any ?control Mr. Trump exercised over the account greatly paled in comparison to Twitter?s authority.? Still, Justice Thomas himself acknowledges that if the government rents private real property and uses it to create a public forum, it?s still a public forum even when a private landlord has the unilateral right to terminate the lease and evict the government. So?.where?s the gotcha?
Having failed to define that problem, Justice Thomas manufactures a strawman. He says: ?If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.? Notice the conditional grammar to assume a problem without proving it. This is the foundation for a discussion about hypothetical solutions to hypothesized problems.
The two doctrines that ?limit the right of a private company to exclude? are common carriage and public accommodations. That leads to this bone-chilling declaration:
Internet platforms of course have their own First Amendment interests, but regulations that might affect speech are valid if they would have been permissible at the time of the founding. See United States v. Stevens, 559 U. S. 460, 468 (2010). The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny?especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 684 (1994) (O?Connor, J., concurring in part and dissenting in part); PruneYard Shopping Center v. Robins, 447 U. S. 74, 88 (1980). 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.
[Freeze frame and record scratch…] What did he just say?
First, notice how far Justice Thomas has strayed from the case before him. Somehow he?s talking about common carriage and public accommodations when neither doctrine had anything to do with Trump?s management of his Twitter account.
Second, did Justice Thomas just favorably cite Pruneyard? Most ?conservatives? view Pruneyard skeptically because of its dramatic incursion into private property ownership. It?s also on the wane as precedent. Courts have been reluctant to extend it to new facts. The Pruneyard decision may be a low-water mark for private property ownership rights, not the foundation of expanded censorship. (There is also the standard Internet exceptionalism problem with applying an offline analogy like physical-space shopping malls to online media venues).
Third, he is about to make a ?fair argument? that ?some digital platforms are sufficiently akin to common carriers or places of accommodation.? OK, but are there any counterarguments to that ?fair? argument? Normally an opposing litigant would be aggressively telling its side of the story, and other Supreme Court justices would be pointing out the weaknesses in Justice Thomas? ?fair? arguments. Without these tempering forces, Justice Thomas is engaging in personal advocacy, not judicial analysis.
Regarding common carriers, Justice Thomas claims:
In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ?carry? information from one user to another?unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public.
It should not matter how an editorial publication sources the content it publishes. I remember Zagat, which tried to faithfully mirror the opinions of ordinary restaurant consumers. Did ?distributing the speech of the broader public? make Zagat a common carrier? Of course not, because Zagat layered substantial editorial value on top of the consumer comments. But so does Twitter, which enforces its house rules and performs many crucial curatorial functions. Justice Thomas ignores those value-added editorial functions.
Justice Thomas then links common carriage to network effects:
The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today?s dominant digital platforms derive much of their value from network size?.The Facebook suite of apps is valuable largely because 3 billion people use it. Google search?at 90% of the market share?is valuable relative to other search engines because more people use it, creating data that Google?s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms?last year, Google brought in $182.5 billion total, $40.3 billion in net income?would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry?.
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. 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.
The companies Justice Thomas disparages would hotly contest his assessment. But they weren?t in his courtroom to explain themselves.
More generally, normally common carriage redresses natural monopolies, where it would be socially wasteful to build duplicative infrastructure. Assuming Facebook and Google in fact benefit from network effects, they still lack that key attribute of natural monopolists. In particular, competitors can and will successfully compete by providing non-identical orthogonal solutions.
Justice Thomas continues smearing non-litigants:
Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet?and users rarely do?Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Grind, Schechner, McMillan, & West, How Google Interferes With Its Search Algorithms and Changes Your Results, Wall Street Journal, Nov. 15, 2019. Facebook and Twitter can greatly narrow a person?s information flow through similar means. And, as the distributor of the clear majority of e-books and about half of all physical books, Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.
Is Justice Thomas suggesting all of these services?including Amazon?s book retailing?should be treated like common carriers? Where does that stop?
Also, media industry consolidation is ubiquitous in every media niche. For example, there are 3 major record labels, and Disney has eaten a huge chunk of the movie business. Does that make them common carriers? In the 1970s and 1980s, there was a single daily newspaper in each metro area. Should they have been deemed common carriers because of that? Recall Florida tried to do that in Miami Herald v. Tornillo (though it didn?t use the term ?common carrier?). The Supreme Court held that the Miami Herald newspaper?s local market dominance did not reduce the newspaper?s constitutional protection.
With respect to public accommodations, Justice Thomas says ?a company ordinarily is a place of public accommodation if it provides ?lodging, food, entertainment, or other services to the public . . . in general.? Twitter and other digital platforms bear resemblance to that definition.? Every business will bear some ?resemblance? to that definition because they offer goods or services to their customers, but not every business is a place of public accommodation. Justice Thomas closes the thought by saying ?no party has identified any public accommodation restriction that applies here.? That?s because IT WASN?T RELEVANT TO THE CASE.
Justice Thomas cheerleads the #MAGA legislators around the country working on censorial bills:
The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms. ?[I]t stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of? digital platforms. Turner, 512 U. S., at 684 (opinion of O?Connor, J.). That is especially true because the space constraints on digital platforms are practically nonexistent (unlike on cable companies), so a regulation restricting a digital platform?s right to exclude might not appreciably impede the platform from speaking.
Justice Thomas somehow overlooked Reno v. ACLU (1997), which came out after Turner and Denver Area. The Supreme Court said that, unlike broadcasting and telecom, there was no basis for qualifying the First Amendment scrutiny applied to Internet content regulations. This is 100% responsive to his invocation of O?Connor?s language from Turner.
Justice Thomas then says ?plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.? Not this again. It?s a true statement with respect to ?government threats,? but general censorial exhortations by government officials aren?t ?threats.? In a footnote, he adds:
Threats directed at digital platforms can be especially problematic in the light of 47 U. S. C. ?230, which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content. Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 592 U. S. ___, ___?___ (2020) (THOMAS, J., statement respecting denial of certiorari) (slip op., at 7?8). This immunity eliminates the biggest deterrent?a private lawsuit?against caving to an unconstitutional government threat.
Wait, who is the villain in that story? My vote: The government making unconstitutional threats. Section 230 doesn?t prevent lawsuits directly against the government for issuing these threats. Nevertheless, Justice Thomas apparently thinks that Internet services, receiving unconstitutional demands from government officials, should be sued by individual users for honoring those demands. Yet, an Internet service?s content removal in response to a government threat usually would be considered a ?good faith? removal and thus satisfy the statutory requirements of Section 230(c)(2), so I don?t understand why Justice Thomas thinks his Enigma statement is relevant. And if Section 230 didn?t protect the Internet service?s removal, is Justice Thomas saying that the Internet services should be compelled to carry potentially illegal content even if the government executes its threat? Here?s a better idea: we should all work together to stop the government from issuing unconstitutional threats. And the first government threat I think we should stop? I nominate Justice Thomas? threat to impose must-carry obligations.
Justice Thomas, citing Prof. Volokh, speculates that maybe Section 230 is itself unconstitutional:
some commentators have suggested that immunity provisions like ?230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship
As I?ve said before, the phrase ?private censorship? is an oxymoron. Only governments censor. Private entities exercise editorial control.
More generally, I do not see how Section 230(c)(1) is unconstitutional. It?s a speech-enhancing statute that supplements the First Amendment. Section 230(c)(2) is more colorable because it does make distinctions between different content categories. However, so long as courts read the ?otherwise objectionable? exclusion broadly, that phrase basically applies to all content equally. Note that various Section 230(c)(2) reforms propose to remove or modify the ?otherwise objectionable? language, and those changes could create a constitutional problem where none currently exists.
Justice Thomas says the threats he?s talking about have nothing to do with the case at hand:
But no threat is alleged here?no party has sued Twitter. The question facing the courts below involved only whether a government actor violated the First Amendment by blocking another Twitter user.
I agree. So why is Justice Thomas discussing any of this?
Justice Thomas? statement concludes:
The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms.
I strongly disagree about the MOST ?glaring concern? here. Twitter lacks the power to order drone killings, separate parents from their children at the border, put a knee on the neck of a suspect for 9 minutes, incarcerate people, impose taxes, garnish people?s wages, or engage in the thousands of other ways that governments can deprive people of their assets, liberty, or life. Compared to the government?s vast power to squelch speech, the power of the ?dominant digital platforms? seems puny. Justice Thomas betrays his extraordinary degree of privilege. Due to that privilege, he doesn?t recognize how the truly glaring concern is that the government, fueled by his words, will use its ?dominance? to ?smother? far more speech than any Internet service ever could.
I hope Justice Thomas? colleagues do not share his views and this statement is just idle musings. But even if the statement doesn?t lead to changes at the Supreme Court, it will nevertheless contribute to three unfortunate dynamics.
First, plaintiffs will improperly cite the statement as if it is binding law (which they did with his prior statement: 1, 2). They will especially like the discussion about government threats.
Second, plaintiffs will appeal more censorial cases to the Supreme Court, knowing that Justice Thomas is a reliable vote to grant the cert petition and vote in their favor.
Third, state legislators will view this opinion as permission to pursue unconstitutional must-carry obligations. There are so many proposals percolating in the state legislatures right now, and odds are good that at least one will get enacted and the battle will shift to the court challenges of those laws. The future of the Internet rests on those coming court battles, and I feel less secure about the Internet?s fate knowing that Justice Thomas is one of the final 9 votes.
Finally, remember that Trump?s Twitter account was government speech. The thrust of Justice Thomas? statement would require Twitter to carry government speech it doesn?t want to carry. That isn?t garden-variety censorship. Justice Thomas seemingly wants private media operations to become government mouthpieces. Forcing media outlets to distribute government propaganda is a hallmark of repressive and autocratic countries. I don?t know what it means to be a ?conservative,? but I know it shouldn?t include that.
BONUS: Justice Thomas isn?t trying to hide his antipathy towards Google. See this passage from his dissent in Google v. Oracle, No. 18?956 (U.S. Sup. Ct. April 5, 2021):
If the majority is going to speculate about what Oracle might do, it at least should consider what Google has done. The majority expresses concern that Oracle might abuse its copyright protection (on outdated Android versions) and ??attempt to monopolize the market.?? Ante, at 34?35. But it is Google that recently was fined a record $5 billion for abusing Android to violate antitrust laws. Case AT.40099, Google Android, July 18, 2018 (Eur. Comm?n-Competition); European Comm?n Press Release, Commission Fines Google ?4.34 Billion for Illegal Practices Regarding Android Mobile Devices to Strengthen Dominance of Google?s Search Engine, July 18, 2018. Google controls the most widely used mobile operating system in the world. And if companies may now freely copy libraries of declaring code whenever it is more convenient than writing their own, others will likely hesitate to spend the resources Oracle did to create intuitive, well-organized libraries that attract programmers and could compete with Android. If the majority is worried about monopolization, it ought to consider whether Google is the greater threat.
Originally posted to Eric Goldman’s Technology & Marketing Law Blog.
Filed Under: 1st amendment, clarence thomas, content moderation, free speech, section 230