The United States Supreme Court Associate Justice Clarence Thomas in a non-binding order on April 5th, wrote regarding the problem of Big Tech platforms censoring opinions, most famously censoring the then President of the United States Donald Trump himself.
In his order today, Thomas wrote, “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. Historically, at least two legal doctrines limited a company’s right to exclude.”
Justice Thomas then drew a parallel between Big Tech social media platforms and certain businesses called “common carriers”, writing, “First, our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers.”
Justice Thomas also clarified that the Supreme Court believes regulations akin to those placed on “common carriers”, even for companies not historically considered so, maybe justified when, “a business, by circumstances and its nature, . . . rise[s] from private to be of public concern.”
According to Justice Thomas, there is a “clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers.” In the case of Telegraphs, they “resemble[d] railroad companies and other common carriers,” and were “bound to serve all customers alike, without discrimination,” writes Justice Thomas
Justice Thomas further wrote, “Even if digital platforms are not close enough to common carriers, legislatures might still be able to treat digital platforms like places of public accommodation.”
“Once again, a doctrine, such as public accommodation, that reduces the power of a platform to unilaterally remove a government account might strengthen the argument that an account is truly government-controlled and creates a public forum.”, Justice Thomas adds.
Legal journalists believe that this order from Justice Thomas invites the U.S. Congress to ban social media companies from regulating or censoring their own content, and instead be transformed into “common carriers” or “places of public accommodation”, as illustrated by Justice Thomas.
This opinion by Justice Thomas is also seen as an endorsement of the conservative view on Free Speech and the 1st Amendment, that these social media companies violate the spirit of Free Speech and the 1st Amendment through their content regulation, which can often devolve into outright censorship. Recently, Twitter CEO Jack Dorsey admitted that censoring the New York Post’s story regarding Hunter Biden by not letting it spread through Twitter and blocking all links to it, was a “mistake”.