Clarence Thomas and Section 230: Why the justice’s musings matter

Supreme Court Justice Clarence Thomas has fired a warning shot at social media giants Facebook and Twitter that could signal the possibility of stricter regulation and a potential radical shift in thinking around the First Amendment and the hotly debated topic of Section 230. 

On the first Monday in April, Thomas and the other eight Supreme Court justices handed down a ruling in a case involving former President Donald Trump blocking users from his Twitter account. The court vacated a lower court’s ruling that said Trump’s actions were unconstitutional. Since Trump is no longer president, the Supreme Court said, the case was moot. 

Still, Thomas took the opportunity to write a short concurring opinion, which explained why the government should regulate social media companies like so-called «common carriers,» a designation often bestowed on utilities like telephone networks. This line of thinking would restrict social media companies from taking down content from their sites, ensuring that everyone could have equal access to the platforms. 

«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 said in his opinion.

The short opinion could have big implications for the brewing scrutiny of a 25-year-old law that shields companies such as Facebook and Twitter from lawsuits over content users post on their platforms. Lawmakers from both the Democratic and Republican sides of the aisle are calling for reforms to Section 230, a provision in the Communications Decency Act of 1996 that gives legal protections to social media companies. 

Calls for reform have taken on new urgency as social media sites battle a flood of troubling content, including disinformation about the coronavirus vaccines, the outcome of the US presidential election and the deadly attack on the US Capitol. But exactly how to institute reforms is something politicians on opposite sides of the political spectrum don’t agree on.

Democrats argue that Section 230 prevents social media companies from doing more to moderate their platforms, such as taking down or limiting hate speech and <a website about COVID-19. Republicans take a different view. They want the law repealed because of their perception that the Silicon Valley powerhouses are biased against the right and work to censor conservatives, like Trump, while giving liberal politicians a pass. 

Thomas, who’s long expressed originalist views about the First Amendment, echoed conservatives’ concerns over censorship. His comments from the highest court in the US could amplify these complaints and help them gain traction in Congress. 

«There’s a lot of appetite for legislative reform for 230,» said Gautam Hans, an assistant professor at Vanderbilt University who specializes in First Amendment law and Section 230. «The opinion itself calls into question some of the current provisions … which I think means that some legislators will use that to say look, ‘We have a Supreme Court Justice who thinks we have some problems here. Why don’t we go in and try to fix that?'»

What could that legislation look like?

As rhetoric heats up around reforming Section 230, lawmakers at both ends of the political spectrum have introduced a flurry of legislation over the past year. But so far none of it has gained much traction. 

Some bills call for liability protections to go away entirely, while others alter or refine the protections. There are bills that limit the scope of Section 230 by restricting types of activities protected under the law. Other bills strip away liability protections and would have companies earn those protections by showing they’re politically neutral in how they moderate content. 

Facebook CEO <a website Zuckerberg has also proposed a fix to the law. In testimony to Congress last month, he called for more transparency from social media companies and suggested that companies «be required to demonstrate that they have systems in place for identifying unlawful content and removing it.» He also said companies shouldn’t be held liable for content that evades their detection. 

The issue of social media bias has mostly been a conservative talking point that Republican senators, such as Josh Hawley of Missouri and Ted Cruz of Texas, have used to berate Zuckerberg and Twitter’s CEO, Jack Dorsey, at congressional hearings. Republican lawmakers have repeatedly questioned the executives on these claims in spite of scant evidence such bias exists. 

Thomas’ opinion, which no other justice on the court joined, talked about the unprecedented control «of so much speech in the hands of a few private parties.» And Thomas predicted the court would be forced to address how the law handles large social media platforms. He called threat to free speech a «glaring concern.»

In the opinion, he addressed the lower court’s ruling that Trump had violated the First Amendment by blocking people from his Twitter account. Instead of Trump violating free speech, Thomas argued that the social media platforms had threatened the First Amendment. He claims the sheer size of the platforms and the power they wield to completely shut down Trump’s account is evidence of their far-reaching power.

«[I]f the aim is to ensure that speech is not smothered,» Thomas wrote, «then the more glaring concern must perforce be the dominant digital platforms themselves.»

He also took aim at Google, which he said «can suppress content by de-indexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results.»  He said Amazon «can impose cataclysmic consequences on authors by, among other things, blocking a listing.»

Thomas’ warnings build on arguments he made in a ruling in October that urged the court to narrow its interpretation of Section 230. He suggested the law has been applied too broadly. 

It may be difficult for lawmakers to translate Thomas’ opinion directly into legislation, Hans said. But he added that it’s likely Thomas’ arguments could be used to boost proposals that call for a sort of «Fairness Doctrine» for extremely large technology companies. 

How Thomas’ views have shifted 

Thomas’ argument for justifying government regulation, however, is inconsistent with arguments he’s made in the past. He argues that these large companies should be treated as common carriers, but it was Thomas who in 2005 wrote the Supreme Court decision in Brand X to allow the Federal Communications Commission not to regulate broadband providers as common carriers. 

More recently, Thomas signed on with his conservative colleagues on the court to the Manhattan Community Access Corp. v. Halleck decision, which was written by Justice Brett Kavanaugh and holds that the public access channel MNN hadn’t violated the rights of two of its employees when it shut down the airing of a program they’d produced that was critical of the channel. In the opinion, Kavanaugh ruled that MNN was a private company and wasn’t subject to the same requirements ewr to manhattan protect the First Amendment as the government. 

«What I find very strange about all this is that just two years ago, Thomas signed on to an opinion that basically said something very different than what he wrote this week,» Hans said. Hans said these inconsistencies make him question whether Thomas’ views are based on law or are more influenced by politics. 

«Maybe I’m just one of those cynical people who thinks this is all just about politics,» he said. «But I think if the facts on the ground about social media companies were different, I don’t think he would have written this opinion.»