Clarence Thomas floats possibly regulating social media companies

In a U.S. Supreme Court decision Monday to dismiss a lower court’s ruling over former President Donald Trump blocking critics of his on Twitter, Justice Clarence Thomas floated possibly regulating social media companies.

“The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. 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,” Thomas wrote in the decision,. “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.'”

The associate justice also brought up historic regulations of companies, saying: “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”.

Social media companies, to Thomas, are “sufficiently akin” to a common carrier, like a public utility, and ought to be “regulated in this manner”.

Thomas went on to say: “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.”

As the associate justice pointed out, companies such as Google and Facebook have mostly unchecked power over online marketplaces.

“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 also 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.”

You can follow Douglas Braff on Twitter @DouglasPBraff.

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