US inches towards regulating social media platforms as utilities

American Supreme Court Justice Clarence Thomas has publicly questioned the contradictions presented by the current legal status of social media platforms.

Thomas made the comment after passing judgment on a case in which President Trump had been told he couldn’t block Twitter users because the platform was considered a platform. Trump appealed by the matter is now considered moot since he is no longer President and, furthermore, Twitter has kicked him off anyway.

“…some aspects of Mr. Trump’s account resemble a constitutionally protected public forum,” wrote Thomas. “But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.

“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.”

“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” he went on to say. “Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”

Thomas is essentially posing the question of social media platforms’ legal status. Are they private entities, in which case the Trump ruling should be overturned, or are they public platforms, in which case they should be regulated in the public interest accordingly?

The answer is, of course, that they’re both, which is why the law has some catching up to do. At the centre of this issue is Section 230, which provides one of the core legal foundations for this matter, but which is in dire need of updating. Thomas goes on to ask whether social media should be considered ‘common carriers’ in the same way telecoms companies already are, which in turn would limit their right to exclude.

That original case against Trump was framed in the context of the First Amendment, which prevents the US government from restricting free speech. But Thomas suggests Section 230 may also be a First Amendment matter if it pre-empts state laws designed to protect free speech. In other words, it places too much power of censorship in the hands of private organizations, which are not constrained by the First Amendment.

“The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him,” concluded 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.”

So there is no ruling or precedent set, but a Supreme Court Judge has publicly signalled to the US legal establishment that he thinks this matter needs tackling. At least one of the apparently millions of lawyers investing the US will hopefully take this as an invitation to litigate and then Section 230 and social media censorship can be subjected to long over-due legal scrutiny. The current situation in which the public interest is not represented on these public platforms clearly can’t continue.