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Donald Trump’s election loss and Twitter ban have had a secondary, but legally important, consequence: His ouster from the office and the platform meant an important First Amendment fight was suddenly moot and, on Monday, a free speech victory for a group of users whom he’d blocked was vacated by the U.S. Supreme Court.
The Knight First Amendment Instituted in July 2017 sued Trump after the Twitter users were blocked by the since-banned @RealDonaldTrump account over their political views. A New York federal judge in May 2018 found that violated their First Amendment right to petition the government because the social media site is a modern-day public forum, at least when it comes to the accounts of elected officials. The Second Circuit Court of Appeals in July 2019 agreed that Trump’s action was unconstitutional.
Just before Trump left office in January, the DOJ petitioned the Supreme Court to vacate the “deeply problematic” decision. It argued that because Trump was sued in his official capacity as president, the matter became moot as soon as Joe Biden was sworn in.
On Monday, the Supreme Court did just that, vacating the judgment and remanding the matter to the Second Circuit with instructions to dismiss the case as moot.
Justice Clarence Thomas, in his concurring opinion which is embedded below, discusses the legal difficulties presented by the digital era and why “applying old doctrines to new digital platforms is rarely straightforward.”
Thomas notes that it’s “odd” to think Twitter is a public forum when the company has absolute authority to restrict access.
“The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least,” writes Thomas. “Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages. Under its terms of service, Twitter can remove any person from the platform — including the President of the United States — ‘at any time for any or no reason.'”
While Thomas agrees that in some ways Trump’s account had resembled a public forum, as he did use it to speak in his official capacity as a government official, it’s not an easy analysis because the government itself doesn’t control the space.
He suggests that Twitter, along with Facebook and Google, have unprecedented power in distributing (or choosing not to distribute) information and that could subject them to common carrier regulations, which would limit their ability to exclude people from using their platforms.
“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,” writes Thomas. “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.”
The big tech companies are even more analogous to common carriers because of their dominance in the market, Thomas suggests, which gives them “enormous” control over speech.
“If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude,” Thomas writes. Even if they’re not common carriers, though, he suggests they might still be “places of public accommodation” — those that offer lodging, food, entertainment or other services to the general public.
All of this could point to legislation aimed at restricting the power of these platforms to decide who gets to use them. Especially since, in a footnote, Thomas mentions the recently-controversial shield for internet service providers provided by Section 230 of the Communications Decency Act. He writes, “[S]ome 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.”
Back to the matter at hand, Thomas says the novel questions posed by these tensions are important but this particular suit didn’t give the Supreme Court the chance to answer them.
“The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him,” writes Thomas. “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. 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.”
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