Free Speech

Justice Thomas Suggests Rethinking Legal Status of Digital Platforms

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A very interesting opinion by Justice Thomas in Biden v. Knight First Amendment Institute, concurring in the decision to vacate as moot Trump v. Knight First Amendment Institute (the case in which the Second Circuit held that President Trump violated the First Amendment by blocking certain users from his Twitter account).

As I read it, Justice Thomas is not arguing that platforms are already generally common carriers or government actors under existing legal principles; that argument is quite a stretch, and his analysis seems to me to largely reject that argument, except perhaps when the platforms are restricting speech in response to government threats.

Rather, he is anticipating what might be done through legislation, and whether new state laws that do treat platforms as common carriers (more or less) are going to be seen as blocked by the First Amendment or 47 U.S.C. § 230. (His analysis of the interests involved may also be relevant to whether such state laws violate the Dormant Commerce Clause.) That's an issue the Court will likely have to deal with in coming years.

I also read Justice Thomas's position here as somewhat tentative, and of course it's far from clear that four other Justices will eventually go along with it. But I think the analysis is interesting and helpful to the debate on the subject. The opening symposium issue of our new faculty-edited Journal of Free Speech Law will be all about this general question; we expect the papers to be out around July, and I suspect Justice Thomas's opinion will be heavily cited. (I'll have my own paper in the journal as well, which will touch on many of these issues; my own views on this are uncertain and tentative as well, but I think some of the arguments that are cited favorably by the opinion are much worth discussing, whatever bottom line one ultimately reaches. I've also blogged briefly on the 230 question, influenced by the work of Vivek Ramaswamy & Jed Rubenfeld.)

When a person publishes a message on the social media platform Twitter, the platform by default enables others to republish (retweet) the message or respond (reply) to it or other replies in a designated comment thread. The user who generates the original message can manually "block" others from republishing or responding.

Donald Trump, then President of the United States, blocked several users from interacting with his Twitter account. They sued. The Second Circuit held that the comment threads were a "public forum" and that then-President Trump violated the First Amendment by using his control of the Twitter account to block the plaintiffs from accessing the comment threads. But Mr. Trump, it turned out, had only limited control of the account; Twitter has permanently removed the account from the platform.

Because of the change in Presidential administration, the Court correctly vacates the Second Circuit's decision. See United States v. Munsingwear, Inc. (1950). I write separately to note that this petition highlights the principal legal difficulty that surrounds digital platforms—namely, that applying old doctrines to new digital platforms is rarely straightforward. Respondents have a point, for example, that some aspects of Mr. Trump's account resemble a constitutionally protected public forum. 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. {At the time, Mr. Trump's Twitter account had 89 million followers.} 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."

This is not the first or only case to raise issues about digital platforms. While this case involves a suit against a public official, the Court properly rejects today a separate petition [Freedom Watch v. Google] alleging that digital platforms, not individuals on those platforms, violated public accommodations laws, the First Amendment, and antitrust laws. The petitions highlight two important facts. Today's digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. 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.

[I.] On the surface, some aspects of Mr. Trump's Twitter account resembled a public forum. A designated public forum is "property that the State has opened for expressive activity by part or all of the public." Mr. Trump often used the account to speak in his official capacity. And, as a governmental official, he chose to make the comment threads on his account publicly accessible, allowing any Twitter user—other than those whom he blocked—to respond to his posts.

Yet, the Second Circuit's conclusion that Mr. Trump's Twitter account was a public forum is in tension with, among other things, our frequent description of public forums as "government-controlled spaces" [or] … "government property and … government programs" [or] … "government properties." Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter's authority, dictated in its terms of service, to remove the account "at any time for any or no reason." Twitter exercised its authority to do exactly that.

Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents' complaint of stifled speech…. [A] "private entity is not ordinarily constrained by the First Amendment" ….

Whether governmental use of private space implicates the First Amendment often depends on the government's control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation. But government officials who informally gather with constituents in a hotel bar can ask the hotel to remove a pesky patron who elbows into the gathering to loudly voice his views. The difference is that the government controls the space in the first scenario, the hotel, in the latter. Where, as here, private parties control the avenues for speech, our law has typically addressed concerns about stifled speech through other legal doctrines, which may have a secondary effect on the application of the First Amendment.

[A.] 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.

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. Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J. L. & Tech. 391, 398–403 (2020); see also Burdick, The Origin of the Peculiar Duties of Public Service Companies, Pt. 1, 11 Colum. L. Rev. 514 (1911). Justifications for these regulations have varied. Some scholars have argued that common-carrier regulations are justified only when a carrier possesses substantial market power. Others have said that no substantial market power is needed so long as the company holds itself out as open to the public. See also Ingate v. Christie (Eng. 1850) ("[A] person [who] holds himself out to carry goods for everyone as a business … is a common carrier"). And this Court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when "a business, by circumstances and its nature, … rise[s] from private to be of public concern." At that point, a company's "property is but its instrument, the means of rendering the service which has become of public interest."

This latter definition of course is hardly helpful, for most things can be described as "of public interest." But whatever may be said of other industries, there is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers. Telegraphs, for example, because they "resemble[d] railroad companies and other common carriers," were "bound to serve all customers alike, without discrimination."

In exchange for regulating transportation and communication industries, governments—both State and Federal—have sometimes given common carriers special government favors. For example, governments have tied restrictions on a carrier's ability to reject clients to "immunity from certain types of suits" or to regulations that make it more difficult for other companies to compete with the carrier (such as franchise licenses). By giving these companies special privileges, governments place them into a category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken.

Second, governments have limited a company's right to exclude when that company is a public accommodation. This concept—related to common-carrier law—applies to companies that hold themselves out to the public but do not "carry" freight, passengers, or communications. It also applies regardless of the company's market power.

[B.] 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. 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. See Turner Broadcasting System, Inc. v. FCC (1994) (O'Connor, J., concurring in part and dissenting in part); PruneYard Shopping Center v. Robins (1980). There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.

[1.] In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they "carry" information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot "be treated as the publisher or speaker" of information that they merely distribute.

The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today's dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google's algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.

To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.

Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet—and users rarely do—Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Grind, Schechner, McMillan, & West, How Google Interferes With Its Search Algorithms and Changes Your Results, Wall Street Journal, Nov. 15, 2019. Facebook and Twitter can greatly narrow a person's information flow through similar means. And, as the distributor of the clear majority [89%] of e-books and about half [42%] of all physical books, Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.

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. 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.

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. When a platform's unilateral control is reduced, a government official's account begins to better resemble a "government-controlled spac[e]." Common-carrier regulations, although they directly restrain private companies, thus may have an indirect effect of subjecting government officials to suits that would not otherwise be cognizable under our public-forum jurisprudence.

This analysis may help explain the Second Circuit's intuition that part of Mr. Trump's Twitter account was a public forum. But that intuition has problems. First, if market power is a predicate for common carriers (as some scholars suggest), nothing in the record evaluates Twitter's market power. Second, and more problematic, neither the Second Circuit nor respondents have identified any regulation that restricts Twitter from removing an account that would otherwise be a "government-controlled space."

[2.] 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. Although definitions between jurisdictions vary, a company ordinarily is a place of public accommodation if it provides "lodging, food, entertainment, or other services to the public … in general." Twitter and other digital platforms bear resemblance to that definition. This, too, may explain the Second Circuit's intuition. Courts are split, however, about whether federal accommodations laws apply to anything other than "physical" locations[, e.g., whether] … Title III of the Americans with Disabilities Act (ADA) covers websites ….

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. But no party has identified any public accommodation restriction that applies here.

[II.] The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms. "[I]t stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of" digital platforms. Turner (opinion of O'Connor, J.). That is especially true because the space constraints on digital platforms are practically nonexistent (unlike on cable companies), so a regulation restricting a digital platform's right to exclude might not appreciably impede the platform from speaking. See id. (noting restrictions on one-third of a cable company's channels but recognizing that regulation may still be justified); PruneYard. Yet Congress does not appear to have passed these kinds of regulations. To the contrary, it has given digital platforms "immunity from certain types of suits," with respect to content they distribute, 47 U.S.C. § 230, but it has not imposed corresponding responsibilities, like nondiscrimination, that would matter here.

None of this analysis means, however, that the First Amendment is irrelevant until a legislature imposes common carrier or public accommodation restrictions—only that the principal means for regulating digital platforms is through those methods. Some speech doctrines might still apply in limited circumstances, as this Court has recognized in the past.

For example, although a "private entity is not ordinarily constrained by the First Amendment," it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Consider government threats. "People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around." Bantam Books, Inc. v. Sullivan (1963). The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.

{Threats directed at digital platforms can be especially problematic in the light of 47 U.S.C. § 230, which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content. Malwarebytes, Inc. v. Enigma Software Group USA, LLC (2020) (Thomas, J., statement respecting denial of certiorari). This immunity eliminates the biggest deterrent—a private lawsuit—against caving to an unconstitutional government threat.

For similar reasons, some 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. See Volokh, Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment? The Volokh Conspiracy, Reason, Jan. 23, 2021. According to that argument, when a State creates a private right and a federal statute pre-empts that state law, "the federal statute is the source of the power and authority by which any private rights are lost or sacrificed." Railway Employees v. Hanson (1956); accord, Skinner v. Railway Labor Executives' Assn. (1989).}

But no threat is alleged here. What threats would cause a private choice by a digital platform to "be deemed … that of the State" remains unclear. And no party has sued Twitter. The question facing the courts below involved only whether a government actor violated the First Amendment by blocking another Twitter user. That issue turns, at least to some degree, on ownership and the right to exclude.

[III.] The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. 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.

NEXT: Is SCOTUS Getting Ready to Reverse the Sixth Circuit in a Habeas Case Yet Again?

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  1. “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, like many conservatives these days, suddenly finds his inner Warren/Chomsky. And all it took was a Dear Orange Leader to help him find it…

    I mean, really, he’s been on the Court a long time. Has he ever before expressed this kind of thinking on the subject?

    1. There has never been a case like this before.

      In fact, the underlying issue never arose before the current (2020) POTUS election cycle.

      It could have — one of the arguments in the AT&T breakup case was something to the effect of “while the men running AT&T have always acted in a noble fashion, there is no guarantee that future men will act in a similar manner” — i.e. that the (relatively) few men in charge of the nationwide telephone monopoly *could* control speech, they never had. And the AT&T case was settled a decade before Thomas was on the court.

      It wasn’t until 2017 and Trump’s victory that Big Tech started its censorship drive. It wasn’t until 2020 that it started its wholesale purge of Conservatives.

      Not that I expect Queen Amalthea to be confused by facts, but nothing like this has happened before — the closest possible analogy would be some of the things the railroads did in the 19th Century, but that didn’t involve speech.

      1. I agree it’s new to have a public figure of Trump’s position act like such a boorish, buffoonish, violent jackass on a public forum and inspiring so many of his followers to follow suit….

        But, yeah, one would think one would get from the Chomsky reference that this is nothing new, leftists have been making these complaints for a long time from their side. It’s just when Orange Great Man thought he was in a similar situation that his lemmings followed suit.

        1. When you have Bernie Sanders concerned that banning Trump might be a bad thing…well…. MAYBE it’s actually a unique, different situation.

          1. Uh, no, Sanders has long held the Warren view on these things.

            1. The point appears to have sailed well over your head….

        2. How many followers does Chomsky have?
          To quote someone “Quantity has a quality all it own.”

          1. Lol, Chomsky would say his lower number is because of platform discrimination long standing of course.

            Look, you’ve taken a position that is historically silly for you because Orange Leader is very dear to you. People do silly things for love all the time. Don’t compound it.

            1. “Lol, Chomsky would say his lower number is because of platform discrimination long standing of course.”

              You do know that the WWW was invented in 1993. don’t you?

              1. You do know there were platforms before 1993, don’t you?

                1. Did Chomsky have problems publishing his books?

                  (They seemed pretty common in bookstores back in the day, but maybe there is a back story I’m not aware of)

                  1. Did Hawley?

                    See, you’re asking the questions on the wrong level.

                    1. See, Chomsky argued that many major ‘mainstream’ platforms refused his work because of its controversial left wing nature. He argued this was largely because of the big corporate nature of media and that there was a serious bias against him and his like in ‘mainstream’ platforms.

                      It’s the same thing Republicans have started to argue ever since their buffoonish Orange Dear Leader got castigated by major platforms for his buffoonish behavior there.

                    2. “Chomsky argued that many major ‘mainstream’ platforms refused his work because of its controversial left wing nature. ”

                      Do you have more specifics? For example, I checked the publisher for a couple of his earlier works:

                      American Power and the New Mandarins — 1969, Random House
                      Counter-Revolutionary Violence: Bloodbaths in Fact and Propaganda — 1973, Warner Modular Publications (subsidiary of Time Warner)
                      The Political Economy of Human Rights — 1979, South End Press (yup, that’s an off beat publisher. Did he pick them because the majors wouldn’t publish him or because he liked their ‘egalitarian collective’ model?)
                      Towards a New Cold War — 1982, Pantheon (subsidiary of Random House)

                      TBH, I’m not seeing a lot of suppression there. I worked at a university, and spent many a happy lunch hour browsing the (then common) used book stores, and his books were ubiquitous. How suppressed can you be when Random House and Time Warner are flogging your books?

                  2. “Did Chomsky have problems publishing his books?”

                    The classic example of both sides of this is the first edition of _Our Bodies, Ourselves_ — and (as I understand it) a group of women self-published it largely with mimeograph machines — they didn’t have access to the fancy (and expensive) print technologies of the 1970s, but they WERE able to print and distribute their book (subject to obscenity suits).

                    Excepting what may have been politically-motivated obscenity prosecutions, they were free to distribute their book to their heart’s content — they weren’t censored the way that Farcebook & Twatter censor those who wish to question the wisdom of Fauci or the CDC.

                    And in both cases, it is the exact same thing — a group of people outside of the social mainstream wishing to question the existing medical consensus of the day. _Our Bodies_ was written by a group of youngish feminists who felt that the all-male MD cadre of the era didn’t understand women’s bodies — and I think they were probably right on that.

                    (Now as to exactly how many psychiatrists were having sex with their female patients, I’m not saying it didn’t happen, but I’d like to see some objective data before believing that it was *all* of them.)

                    Today, we have a similar group of people, questioning the wisdom of Big Pharma and Team Fauci. Again, I don’t know if they are right, but just like the women in Boston back in 1969, they are being told not to ask questions, but to instead blindly follow the decrees of the so-called experts.

                    Except these people are being silenced, while the Boston Women’s Collective wasn’t….

                  3. So, Absaroka, back in the day, did you read Chomsky? Or did you somehow get the impression he was a marginal author, unworthy of attention? I confess to having the latter reaction. For a long time I knew the name, never saw the books, and never thought I was missing much—which led to considerable surprise when I finally got me some Chomsky and found it at least thought provoking, sometimes cogent.

                    Your conclusion that Random House and Time Warner were “flogging” Chomsky’s books suggests a misunderstanding of what off-label publishing subsidiaries are for. They are mostly there to reduce chances that long-odds successes won’t be overlooked, if they are so good they can make it anyway, without too much promotion invested.

                    1. I’m not a Chomsky acolyte, then or now.

                      “They are mostly there to reduce chances that long-odds successes won’t be overlooked, if they are so good they can make it anyway, without too much promotion invested.”

                      You seem to be conflating ‘didn’t market as aggressively the latest John le Carre’ with ‘refused his work’.

              2. You do know that the WWW was invented in 1993. don’t you?

                Like most things Dr. Ed thinks he knows, this is wrong.

                1. “Like most things Dr. Ed thinks he knows, this is wrong.”

                  The correct answer on the exam that not-yet-Dr. Ed had to pass was that the University of Illinois’ National Center for Supercomputing Applications released Mosaic in 1993.

                  Yes, two years before that, Timothy Berners-Lee had created what is generally considered to have been the first Web page, at CERN where he worked at the time. And the internet itself dates back to ARPANET (Advanced Research Projects Agency Network) in 1969 if not earlier. (ARPA was DOD, a fact many like to overlook.)

                  But the rationale for the use of 1993, not-yet-Dr. Ed was told, was that the browser made everything else usable.

                  1. I hate to admit it, but this comment is accurate.

                    1. NCSA Mosaic fed the popular adoption of the Web but I don’t see how one could claim its release marked the invention of the Web. Berners-Lee documented the principles in 1989 and built the first browser in 1990, but for the relatively expensive workstation-class NeXT computer.

                    2. “I don’t see how one could claim its release marked the invention of the Web. ”

                      There are things with a fairly clearcut date of invention – transistors, for example. But many inventions have a fairly long gestation period. For example the first railroady kinds of things involved wooden tracks and were horse drawn. A couple hundred years later they upgraded to cast iron and then wrought iron rails, still horse drawn (the lower rolling resistance of rails gives substantial advantages even when horse drawn). Eventually they replaced the horses with a steam engine without changing the tracks. And later, diesel and electricity replaced steam, giving us the modern railroad. When in that process is the first railroad? You can get a specific date for ‘first metal railed’ or ‘first steam powered’ or ‘first diesel/electric’, but ‘first railroad in general’ is a pretty fuzzy concept.

                    3. Absaroka, don’t forget the infamous “strap iron.”

                      Wood (oak) was far cheaper than iron, so what they did was have wooden rails with an iron strap attached to the top. These straps came loose and often came curling up *through* the carriages, sometimes impaling passengers.

                      Railroading was incredibly dangerous in the 19th Century, but strap (or strip) iron track was particularly nasty — and as companies got more money, was eventually replaced by solid iron track and then steel track.

                      Remember that this was when women wore whalebone “hoop” skirts and I’ve read stories of where the woman wasn’t injured but the strap iron had come up inside of her skirt and impaled it to the wall (or something) and it was a real problem as to how men (which all railroad employees at the time were) should deal with this.

                      Unfortunately, other passengers weren’t always as lucky…

                    4. Different inventions have differing degrees of pin-down-ability, but even with the fuzzier ones there are unreasonable answers to the question. I don’t believe anyone who takes the question seriously would argue that railroads weren’t invented until the diesel-electric locomotive showed up.
                      Given that Berners-Lee satisfied the old school “reduction to practice” requirement by building a working server and hyperlink-following text and image browser years before the NCSA folk, how would you argue that the Web was not invented until then?

            2. I don’t give a hoot for Trump and never did. I do find both forms of TDS amusing.

              1. It’s true, people deranged in their devotion to the Orange One are amusing.

    2. Has he ever before expressed this kind of thinking on the subject?

      It’s a fair question. But you can also ask the same question of liberals (especially self-styled SCOTUS expert academics and journalists on Twitter) who are astounded at Thomas’ position, think it unprecedented, etc. Thomas is adverting to a position that A LOT of liberals took in the 1960’s-80’s, who advocated that there should be legal scrutiny given to the use of corporate power to suppress speech.

      I don’t have any problem with anyone taking any position on this issue. But if you don’t understand that this is a debate that goes back decades, was the subject of several important Supreme Court cases and numerous law review articles, etc., you shouldn’t be commenting as an expert on constitutional law.

      1. Liberals have questioned it through that time period until now, they really haven’t flipped on this much. You can see that in the grilling they did on ‘Big Tech’ in recent hearings when it was their turn to ask questions. It’s conservatives who have suddenly found (Orange) Jesus on this.

        1. I am not saying liberals flipped so much as I am saying that there are a bunch of very arrogant liberals who comment on the Supreme Court and who wouldn’t even know what I was talking about if I said “the Logan Valley case” to them, but who tell everyone else how extreme and unprecedented and stupid the position is that there can be legal scrutiny of corporate power to regulate speech.

          The liberals who are older and/or who know the subject did not flip. But they aren’t the loudest people in the room.

          1. What liberals “tell everyone else how extreme and unprecedented and stupid the position is that there can be legal scrutiny of corporate power to regulate speech?” Name them, please. Because one thing I know about liberals, yesterday, today and in between, is they have a consistent (and imho often goofy) hatred of most things corporate.

            1. Mark Joseph Stern. Ian Millhiser. Scott Lemieux. That’s just off the top of my head. There are a ton of others.

              1. I’m afraid you’re going to have to cite where these people “tell everyone else how extreme and unprecedented and stupid the position is that there can be legal scrutiny of corporate power to regulate speech?”

                1. Mark Joseph Stern did it just this morning on Twitter.

                  Really, I have better things to do than do a research project for you. I am sure you can locate these people doing that if you search for it. The smug “you idiot, the First Amendment only applies to the government” statements are a standard part of online discourse from these types.

                  1. A standard line that you don’t have time to link to, even though you have time to make multiple paragraph length comments here that they are common?

                    1. Have you never seen how many morons link to, or embed the comic from, https://xkcd.com/1357/ as if it is true?

                      It doesn’t get even basic First Amendment law right, but people cite it as if it is proof that “free speech” is coterminous with the First Amendment.

                    2. Searches for stuff takes more time than writing something.

                      Do your own research. Heck, Stern turned his tweetstorm today into an article in Slate! It’s not hard to find.

                    3. “It’s not hard to find.”

                      And yet, you did not provide a link, instead writing a longer retort….

                    4. I expect Dilan is referring to the top article here, which was in turn the first hit when searching for ‘Mark Joseph Stern slate’.

                2. The answer is something that would take me longer to tell you to look up than to link to, but I will not line to!

                  Principle, you know!

        2. Did we watch the same hearings? Because what I heard from the left side of the aisle was primarily chastisement on the fact that they were not censoring and filtering enough to eliminate “disinformation” and “hate speech”.

          1. Why do you think Warren wants to break up Twitter? Because it’s not doing enough to censor and filter what you’re talking about? Because they’d have less ability to do that broken up.

            1. The far Left has been arguing for quite a while the following: the ‘real’ left will never get a hearing in the national media because the national media is dominated by Big Corporate and Big Corporate naturally sees the message of the ‘real’ Left as anathema, so those on the ‘real’ left are de-platformed and voice-less.

              It’s the same thing the far Right (which is just the Right I guess these days) is suddenly saying after their boorish leader got kicked off some social media for his boorish statements.

    3. Bush speechwriter David Frum put it best in his recent article in The Atlantic: The Strange New Doctrine of the Republican Party

      “The GOP’s version of freedom puts greater priority on right-wing cultural folkways than on rights of property and ownership.”

      https://www.theatlantic.com/ideas/archive/2021/04/sudden-conservative-outrage-over-vaccine-passports/618476/

      And Thomas seems to be unaware of the hundreds of thousands of non-Twitter an non-Facebook sites on the internet to voice ones opinions. This forum, for instance, but also nearly every online news story attracts hundreds of comments.

      Contrast the ability for anyone today to publicly comment on every single news item with the situation when Thomas was confirmed, and what is unprecedented is how much more free speech there is now, i.e. there hundreds of thousands of outlets there are that not controlled by a relatively few organizations. Sure, Twitter and Facebook a large, but still make a small portion of the places to share your opinion.

      1. “. . .but also nearly every online news story attracts hundreds of comments.”

        Except Fox News now.

        It seemed like there was an uptick in left-ish views, comments, and likes, especially around the election.

        I guess they could accept that and turned off the comments.

        Either that or there was a lot of “Stop the Steal” and “We should storm the Capitol” kind of talk and…..ooops!

        1. . . . could not accept. . .

        2. Now do CNN.

      2. >And Thomas seems to be unaware of the hundreds of thousands of non-Twitter an non-Facebook sites on the internet to voice ones opinions.

        Fewer and fewer….Google will de-monetize websites with active forums e.g., TheFederalist, Zerohedge. And, if the forums are sufficiently edgy, Visa, Mastercard, and Paypal will pull their merchant accounts, GoDaddy will deregister their domain names, Amazon will delete your website with only 24 hours notice, etc.

    4. Immunity is to grow an enterprise. The lawyer is making unauthorized industrial policy. They are big, and mature. All immunities should be withdrawn. The same is true of government. Abolish all immunities. Let judges and legislatures carry liability insurance. If the payouts get too frequent, let them shut down.

    5. “Has he ever before expressed this kind of thinking on the subject?”

      When did Facebook start? Or Twitter? Or even MySpace?

      Almost no tech as we know it existed 20 years ago and much is 10 or fewer years old.

      1. Monopolies have existed for a bit. And think of ‘FCC’ type monopolies back in the day (which is what Chomsky did)!!! Where Was Thomas?

        1. Why didn’t Thomas deal with tech monopolies before they existed? A mystery.

        2. I’m talking monopolies in general. But I get it, ‘tech’ monopolies didn’t completely serve your Orange God, so, totes different!

      2. Message boards have been banning users for conduct since the 80s.

        And at their heart, all Facebook, Twitter, Instagram, are, are glorified message boards.

        The only difference is that instead of outraged nerds being kicked off private platforms for their conduct, it’s politicians. And suddenly that’s when it becomes an issue.

        1. But they dared to kick off the Orange God, whom his worshippers admit was a totally different political force!

        2. It wasn’t just outraged nerds — a lot of breast cancer survivors were outraged at AOL when it kicked them off for typing the letters “breast” — even more upset were the grandmothers who wished to trade recipes for cooking chicken, which (of course) included a “chicken breast.”

          This isn’t new — it’s just that back then AOL wasn’t intending to censor content in this manner — now, big tech *IS* intending to do it….

    6. QA,
      What is it with you and Chomsky?

      1. He’s a goofball. What is it with so many conservatives invoking his ideas?

    7. Did you hear that these platforms were public utilities in these Comments a long time ago? I think Justice Thomas, an Ivy indoctrinated lawyer dumbass, probably reads this blog. He should adopt a lot more of the ideas here.

    8. As Thomas points out there is certainly some tension in an circuit court ruling that Trump can not ban users from his Twitter account based on their content, but Twitter can ban anyone they want.

      I think there is a lot to be said about declaring them common carriers and not allowing social media for banning users or content on their platforms, at least based on political content.

      I just wonder how the debate about the absolute immunity of social media platforms to ban users would play out if there was an allegations that a platform banned Blacks based on complaining about police brutality or other discrimination.

  2. So is this “originalism” or “textualism”?

    1. More like ‘I was watching OAN last night with Ginni and saw this segment that got me thinking…’

    2. is your comment trite/snarky?

  3. For a long time I have liked Thomas’ dissents and concurrences more than his majority opinions.

    This was a problematic case. I thought the Second Circuit at least did not plainly err. But on the other hand, nothing of value was lost when Trump blocked some users. I would have been happy with the opposite outcome.

    1. Thomas’ initial dissents are fine, but his repeated ‘I voted against the rule the Court adopted 20 years ago and ten times since and write to do so again here’ is tiresome.

      1. I agree. That’s Thomas’ greatest failing as a justice. He is on a court that operates by consensus, but he doesn’t seem to understand that the consensus it forms is the law, and one Justice’s personal opinions about how he’s smarter than everyone else and everyone else got it wrong are not law.

        And the reason I call it a failing is that as much as anyone might agree, or disagree, with his separate opinions, they are often simply irrelevant commentary and render him ineffective as a justice as the others just ignore him.

        1. To repeat what we all said 30 years ago: incompetent and unqualified. Lacking the necessary legal knowledge and temperament. In short, not up to the job.

          1. It’s temperament, not knowledge. He’s extremely smart and diligent. But to be a good justice, you have to know how to get to five votes. Lone wolves aren’t effective.

            1. He’s a judge, not a politician.

              1. He’s a judge on a multi-judge court where you need 5 votes to do anything.

                1. “votes”???

                  I don’t think I would characterize a judge’s decision making process as a “vote”….

              2. He’s a judge and a politician.

                Pretending the SCOTUS isn’t a political body is, at best, naiveté.

                1. EE,
                  He is not a politician. But then neither are you.

                2. He’s not a politician. Nor do people in “political bodies” need to necessarily be politicians.

            2. He’s trying to be Scalia, I guess.

              1. I doubt that. You have no evidence for that snark.

            3. OTOH, the history of SCOTUS is filled with examples where lone wolves slowly/eventually won the debate and could write the majority opinion.

              1. Not really. You can argue that Holmes was a lone wolf on some of the speech opinions, and Harlan on Plessy. But most of the time, when a dissent later becomes a majority, it’s not a lone wolf dissent- it’s a 4 or 3 vote dissent.

                And I don’t think there’s a single example of a “lone wolf over 20 or 30 years, with nobody ever joining the lone wolf” position that later commanded a majority of the Court. When you never convince ANYONE of your position, there are serious practical problems with it. Which is the case with a lot of Thomas’ lone wolf dissents.

                1. The dissent on _Scott v. Sanford_ is the only time the lone dissenter resigned from the court in protest.

                  And that was overturned…

                  1. Damn — as soon as I typed that, I remembered that it was a 7-2 decision, but I was referencing Benjamin Robbins Curtis.

                  2. It wasn’t overturned. It was superseded by the 14th Amendment.

            4. Thomas approaches the law from a “Let justice be done, though the heavens should fall.” perspective. I can’t fault that, his judicial oath isn’t to consensus.

              Is it typically effective on a Court run by the consensus of Justices who are perfectly willing to do injustice to avoid far less serious things than the sky falling down, such as being subject to hostile editorials? No, it is not. One man cannot bring justice to an institution that doesn’t care about it.

              1. Thomas approaches the law from a “Let justice be done, though the heavens should fall.” perspective. I can’t fault that, his judicial oath isn’t to consensus.

                Actually it is. The Constitution he swore allegiance too imports the British common law system (that’s what “the judicial power” means) and vests that power in one Supreme Court, not Clarence Thomas as an individual.

                It’s actually a huge abdication of his constitutional responsibility. He’s more interested in getting plaudits from conservatives who don’t understand the law than in doing his job.

                1. You do know that the judicial oath isn’t secret, right? People can look it up and read it.

                  “I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (office) under the Constitution and laws of the United States. [So help me God.]”

                  No mention of consensus in there at all.

                  1. One of the duties imposed by the Constitution is common law judging (that’s what the judicial power means) and another one is that one Supreme Court, not an individual justice, exercises that judicial power.

                    So, again, when Thomas writes these lone wolf opinions, he’s not actually doing his job.

                    1. Consider this, Dilan: The value of having Justices write solo dissents is having all arguments that were considered, documented for the historical record. There have been a number of times in SCoTUS history where dissents (solo, or in a group) later became the adopted constitutional interpretation. It happens.

                      The United States is fortunate to have Justice Thomas. What an incredible life of accomplishment he has had.

              2. Thomas approaches the law from a “Let justice be done, though the heavens should fall.”

                More like, “Let the law (as Clarence Thomas understands it) be followed, though the heavens should fall.”

                1. Well when Thomas writes a lone wolf dissent like saying qualified immunity doctrine should be reconsidered you are free to criticize him for his idiosyncratic opinion that doesn’t follow established law.

                  I have to admire him for seeing what 8 other justices fail to see.

              3. Thomas approaches the law from a “Let justice be done, though the heavens should fall.” perspective.

                No he doesn’t. He’s ideological, to be sure, but not for justice. He has no problem with unjust outcomes.

          2. Yes, 30 years ago the Left hated that a black man lef ttheir plantation and thought freely.

            They still hate it today (See Biden’s “not black” comment)

            1. He’s a disaffected, right-wing crank married to a grifting right-wing extremist and to a discredited, obsolete, unattractive ideology. He is mostly a vanquished, sad culture war casualty with a nice taxpayer-provided chair, robe, office, and microphone.

            2. Clarence Thomas scares them because he has personal discipline, and intelligence, and is articulate — they could deal with any two, but not all three…

              It really is the soft bigotry of low expectations….

              1. It seems silly to contend the modern American mainstream is ‘scare[d]’ of Clarence Thomas.

                Culture war winners are smart enough to recognize that Clarence Thomas is an ineffectual, lonely crank who will spend the rest of his life barking about his idiosyncratic lawn and losing the culture war, then be replaced by a younger, better, less conservative American in the natural course.

        2. >He is on a court that operates by consensus

          ? To me, it operates on a 50%+1 system, not consensus.

          1. You need consensus within the 5 vote majority. Having a weird position nobody else agrees with can’t form the needed consensus to shape the law.

            1. >You need consensus within the 5 vote majority.

              OTOH, if you are on the losing side (and no Justice wins them all), you might as well write for history.

              1. A lot of his lone wolf opinions are concurrences, not dissents.

                1. What difference does that make?

                  Concurrences/dissents aren’t written for fun; the Justices have strategic purposes in mind, such as limiting/cabining the compromises needed to reach 5 votes.

                  1. I think he writes them for onanistic purposes. He isn’t persuading anyone.

                    1. That is a slander in the commonplace (rather than legal) sense.

    2. “But on the other hand, nothing of value was lost when Trump blocked some users.”

      Similarly, nothing of value was lost when certain companies reacted to violations of their rules by declining to associate with Trump.

      1. You have to love it when Trumpistas go from ‘Trump is a gamebreaking difference maker, he alone can do it’ to ‘this is an unprecedented treatment of a President!’ with such little self-awareness…

        1. They didn’t get to be Trump fans with sound judgment, adequate education, or strong character.

  4. Prof. Volokh, you didn’t do a humble-brag so I’ll do it for you!

    (II.) para 5

    “For similar reasons, some 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. See Volokh, Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment? The Volokh Conspiracy, Reason, Jan. 23, 2021.”

    1. From a mainstream perspective, a nod from a lone-wolf-going-nowhere Thomas concurrence might be seen as more ‘plenty about which to be humble’ than ‘humble-bragworthy.’

    2. That’s awesome! Which Thomas clerk is lurking here?

  5. regulations that might affect speech are valid if they would have been permissible at the time of the founding.

    This sounds odd. I wonder what he is referring to. Surely anti-pornography laws, for example, that might have been permissible at the founding would be considered unconstitutional today.

    1. Seems like they should be considered constitutional today then, no?

      1. Surely the founders didn’t have such a cool gun as an AR-15, so therefore it should be fine to ban them now, right?

        (For its warts, this is why textualism is a better approach than “original intent”.)

        1. That’s a terribly inapt analogy. There were no laws that barred the AR-15 back then. Rather, the argument was that the Founders did not see the First Amendment as invalidating those anti-pornography laws — so what changed for later courts to find otherwise? (We have not further amended the First Amendment, and some anti-porn laws struck down were federal, so it was not due to incorporation via the Fourteenth Amendment either.)

          In contrast, the Founders understood that technologies would change, and did not try to draw the Second Amendment’s boundaries based on what arms they could procure.

        2. I understand your point, but “original intent” is just the biggest and best piece of evidence as to what the meaning of the “text” is — specifically, the original meaning of the text. To be sure, it’s not necessarily dispositive, nor is it necessarily always even determinable.

          With that said, I’m not sure how this is all that pertinent to AR-15s or pornography. Certainly they had lewd imagery back then, too, I don’t see the difference.

          1. At the founding, the 1st amendment was only applicable to the federal government. The federal government didn’t enact its first gun control law until the 20th century. I’m not sure when they enacted their first pornography law, but looks to me like it was after the Civil war.

            So, since incorporation was aborted shortly after the passage of the 14th amendment, and not revived until the second half of the 20th century, it’s kind of difficult to establish that the 1st amendment wouldn’t have barred obscenity laws, or the 2nd gun control. (In the case of the latter, we have ample evidence that it was, in fact, thought to bar gun control laws, well into the 20th century. Which is why the NFA was a tax law.)

            1. Setting aside the incorporation issue, your premise seems to be that the 1st amendment originally did protect pornography and would have prohibited laws against pornography and obscenity.

              Bernard’s premise, on the other hand, is that the 1st amendment originally would not have prohibited laws against pornography.

              I don’t have much knowledge about this and don’t know which position is correct. But assuming bernard’s premise is correct, then originalism would dictate that such laws as would have been permitted then should be permitted now.

        1. Because you see that as a better policy, right? I respect that.

          1. No. Because anti-pornography laws violate the First Amendment, whether the founders thought so or not. More likely, they didn’t really think about it, and it was more reflex than reason that allowed the laws.

            Here’s the thing. The Constitution, among other things, sets out certain principles. That those principles were not perfectly honored at the time of the drafting doesn’t invalidate them. You may have noticed that people, certainly including the founders, often fail to live up to their announced principles.

            We are not obligated to mimic their failures, originalism notwithstanding.

            1. I agree generally. But I’m unaware of whether or how the principle of freedom of speech protected pornography in the first place, nor how such a principle was originally not honored.

              In terms of talking policy today, I don’t think outlawing pornography is a viable or good idea, but I would think that if a government can require ID and proof of age to be presented for alcohol and tobacco, then it can do the same for pornography. If the government can zone porn shops out of operating across the street from the elementary school, then they could zone porn on the internet so that it’s not as easily streaming on demand to every child’s handheld device.

              1. I don’t know anything about anti-pornography laws in the 18th Century. I presume there were some, because there were certainly plenty in the 20th.

                I don’t think outlawing pornography is a viable or good idea, but I would think that if a government can require ID and proof of age to be presented for alcohol and tobacco, then it can do the same for pornography.

                I don’t think it’s a good idea either, though why you should have to present ID and proof of age is not clear to me. Is there overwhelming (non-Meese) evidence that pornography is seriously harmful to the consumer, so that there is an argument that it should be restricted to adults? I’m not aware of it, but I haven’t looked.

                Good luck with zoning it on the Internet.

                1. “Is there overwhelming (non-Meese) evidence that pornography is seriously harmful to the consumer, so that there is an argument that it should be restricted to adults? ”

                  Oyyyy…Start here.

                  https://www.apa.org/news/press/releases/2007/02/sexualization

                  1. So, it’s not harmful to the consumer.

                    Our sexualization problem comes from the puritanical obsession with making sex taboo.

                2. Anti-porn laws were rare until after the Civil War when Anthony Comstock appeared on the scene. One of Justice Brennan’s great errors was his Roth opinion’s contrary claim as a basis for excluding obscenity from the freedom of speech protected by the first amendment.

            2. “Here’s the thing. The Constitution, among other things, sets out certain principles. That those principles were not perfectly honored at the time of the drafting doesn’t invalidate them. You may have noticed that people, certainly including the founders, often fail to live up to their announced principles.

              We are not obligated to mimic their failures, originalism notwithstanding.”

              +111111

  6. ” 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.”

    That, in a nutshell, is the issue I had with the initial lawsuit.

    Say that Trump instead took out full page ads in the paper version of the New York Times — he would be under no obligation to purchase advertising space to his detractors.

    Well, Twatter users also purchase space on Twatter — there’s an exchange of value even though it is not cash based, users are literally selling their personal privacy, which is why I am not on it. And if this were not true, then how can the company be so rich — let alone breaking even?

    Server farms aren’t free, nor is the electricity they consume (etc.) — if Twatter and Farcebook aren’t selling your privacy, how are they paying these bills???

    1. “Server farms aren’t free, nor is the electricity they consume (etc.) — if Twatter and Farcebook aren’t selling your privacy, how are they paying these bills???”

      This is dumb. They make money by selling ads. Broadcast TV stations have had this business model for a long time, without any ability to violate anyone’s privacy.

      1. If my privacy isn’t being sold, then explain how they can sell *personalized* advertising…

        For example, after I look up a specific auto part on line but don’t order it, all I’ll see afterwards are ads for that specific auto part. Ads from that vendor, ads from other vendors — but how do they even know the make & model of my truck unless Gaggle sold it to them — or sold them the ability to target advertising to me, personally.

        Contrast that to Boston’s WBZ-AM radio which reaches 38 states at night — they sell advertising but it isn’t targeted to any specific individual, it can’t be. And that’s the selling of my privacy issue that I am writing about.

      2. This is dumb. They make money by selling ads.

        Yes, but they target those ads to specific users based largely on information about those users that they buy/sell to/from each other (which many of them do in real-time, btw). This becomes obvious when you use Google to search for a type of product and a few minutes later ads for that type of product suddenly start appearing in your FB feed, among other places. Or when you shop for something on Amazon.com, and ads for similar products show up on various Google pages, etc.

        1. Which is amazingly stupid, by the way: I make the sort of purchase I’m unlikely to repeat for years, if ever, and I’m suddenly inundated with ads for something I’m basically guaranteed not to buy.

          I buy a car, suddenly it’s nothing but car ads. Who the heck impulse buys a second car, hours after they’ve just bought one?

          1. Um, they know that you were shopping for a car, not that you already bought the car.

        2. Wuzzie, does FB use a totally context-specific algorithm? Lol.

          1. Wuzzie, does FB use a totally context-specific algorithm? Lol.

            The only thing funny about that question is that it’s meaningless gibberish.

            1. Talking about totally context-specific canons or the like is indeed meaningless gibbersh!

              1. Ah, I see the problem. You’re still confused by the results of your own illiteracy.

                1. Wuzzie, the defender of totally context specific general rules!

                  He also defends the longer short cut!

                  Lol.

        3. Well, two points:

          1) Dr. Ed 2’s original claim was that the fact that they had server farms was somehow proof they were violating your privacy. This is obviously a dumb argument since there’s all sorts of non-privacy violating ads in the world that are capable of creating revenue streams.

          2) I agree that all of the ad platforms seek to personalize to the greatest degree possible, and some do it in ways that are privacy-violating. Your example, though, is nonsense. Google definitely doesn’t sell search data to Facebook and would be crazy to do so–they have competing ad platforms and want to convince advertisers to choose theirs and not the others; telling Facebook who searched for what would directly undermine a competitive advantage. It’s true that you’ll see the re-targeting ads that you’re talking about show up in different places than when you first look for a product, but it’s not going to be on competing platforms (e.g., Amazon-search-on-Facebook). It’s going to be Amazon-search-on-Fox News or Instagram-like-on-Reason.

          2a) This personalization doesn’t imply a violation of privacy, because the platforms don’t say “hey Reason, here’s what WuzYoungOnceToo is into”; rather, Reason opens up a slot for an advertisement on their page and then your browser communicates directly with the ad platform, which in turn serves you a personalized ad, noting that the referral came from Reason and they should get credit for the impression/click whatever.

          1. “Dr. Ed 2’s original claim was that the fact that they had server farms was somehow proof they were violating your privacy.”

            Dr. Ed made no such claim. Instead, my point was that the mere fact that they could afford these expenses was primia fascia evidence that they were taking in a lot of money — *and* then the fact that I saw auto parts showing up on the Drudge Report, etc was evidence that they had marketed *me*.

    2. “if Twatter and Farcebook aren’t selling your privacy, how are they paying these bills???”

      Mostly by leasing your eyeballs to advertisers.

  7. “Rather, he is anticipating what might be done through legislation, …”

    Oh, awesome. Justice Thomas is just writing him some advisory opinions! Because, you know, that’s what he does now. So much for the great originalist.

    This is the SAME JUSTICE THOMAS who, in Morse v. Frederick, wrote a concurrence basically wanting to bring back the First Amendment so that kids couldn’t complain about fire hazards in their school (look at that citation to Wooster v. Sunderland).

    Again, Thomas is the most political and results-oriented Justice we have. Same as it ever was. He is far more revolutionary and radical than William “Trees have standing” Douglas ever was.

    1. Absolute stretch of a comment. Judges often comment in dicta on the results of a particular holding and issues that may have to be addressed. This is a far cry from Douglas bringing standing to trees. What a reach on your part

    2. I don’t think much of Thomas’ opinion about school speech, but he’s a categorist on the First Amendment. He hates balancing, and tends to view such cases as “you’re either in or you’re out”. Schoolchildren, he thinks, are out. And he had an originalist case to make- I think he’s probably right that the First Amendment was originally understood not to apply to schoolchildren.

      But that’s why I’m not an originalist. I think it’s ridiculous to think Tinker was wrongly decided, and that all of life sometimes involves balancing.

      But I don’t think the Morse concurrence makes him POLITICAL. It just makes him overly formalistic. He sees schoolchildren as a formal category, like “prisoners” or “public employees”.

  8. Great analysis by Thomas. And congrats on the cite to the VC!

    On the most elementary point, I had the same thought about the cases on Trump’s twitter feed. They’re controlled by twitter. It’s not just that Twitter can nuke Trump’s whole account at any time, for any or no reason. Even before that, the “forum” constitutes tens or hundreds of thousands of “replies” and is virtually inscrutable as a whole. The only posts that anyone sees are the ones that Twitter and its algorithms choose to have you see.

    1. Speech that happens on private property can be curtailed by owners of said private property. Whoda thunk?

      1. Right . . . which is why it was a stretch for the courts to conclude that it was a government-controlled public forum.

  9. It seems to me Justice Thomas is making a policy argument that Congress could and should enact legislation classifying social media companies like Twitter and Facebook as common carriers.

    I don’t read his opinion as staking a legal position that Twitter, Facebook, etc. simply are common carriers as a matter of law without anu action of Congress to make them so, or that courts rather than Congress should be making these classifications.

    In the past, when the concept of common carrier was extended from transportation to communications and to new industries like telephones, telegraph, etc., Congress made this extension by enacting new statutes.

    I’m inclined to agree that Congress should extend the common carrier concept further. But it is for Congress to extend it.

    1. Ummm, telegraph arrived with rail — not only were most of the lines run along the tracks, but initially its primary use was for dispatching trains.

      1. Well, the Interstate Commerce Act of 1887 regulated railroads as common carriers. Telephone and telegraph were added by the Mann-Elkins Act of 1910, and trucking by the Motor Carrier Act of 1935.

        Each one a separate act of Congress.

    2. I’d agree with that.

      I don’t think Thomas would just SAY Twitter et al. are Common Carriers. But that a law that declared them as such, would be easily upheld.

      Such a law should have bipartisan support, I would think.

    3. “It seems to me Justice Thomas is making a policy argument that Congress could and should enact legislation classifying social media companies like Twitter and Facebook as common carriers.”

      How many years on the Court, still hasn’t read the job description?

      1. I’ve long thought that it’s perfectly legitimate for a judge, having given a legal opinion as to what the law is and informing the parties that if they want the law changed they need to go to the legislature, to then offer some remarks directed to the legislature recommending they consider changing the law.

        An example is Perkins v. North Carolina, 234 F. Supp. 333 (WDNC 1946), In that decision, Judge Craven after a thorough review of the orecedwnts, upheld the constitutionality of North Carolina’s sodomy statute and Perkins’ 20-30 year sentence for consensual sodomy, notwithstanding that his accomplice received a sentence of only 5-7 years. He granted Perkins a new trial on grounds his lawyer had been appointed just before the trial and didn’t have time to prepare. He ended with a paragraph beginning:

        “Is it not time to redraft a criminal statute first enacted in 1533?…Is there any public purposed served by a possible sixty year maximum or even five year minimum imprisonment of the occassional or one-time homosexual…Are homosexuals twice as dangerous to society as second-degree murders as indicated by the maximum punishment for each offense?…”

        The next year, the North Carolina legislature quietly resuced the maximum sentence to 10 year and abolished the minimum.

        Would it be your position that, in adding this paragraph, Judge Craven was not doing his job?

        1. Why’d you reach back to 1946 when you have Thomas’s dissent to Lawrence v. Texas (2003) right there?

          Justice Thomas, dissenting.

          I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it.

          See? He doesn’t personally want to imprison gay folk, and if repeal were on his desk, he’d vote for it! See, he doesn’t personally want to jail gay people, he just thinks there is nothing morally or legally wrong with Texas doing so!

          1. Which really brings the point to the fore.

            If the law clearly says one thing. And you as a judge, disagree with what the law says.

            Do you still uphold the law? Or do you, as a judge, do what you think is right instead?

      2. You lost that argument when Ruth Ginsburg wrote her Lilly Ledbetter dissent.

    4. I read it slightly stronger….I think he’s signaling to practitioners that the current state of Federal Common Law in this area is unsettled. This has the dual effect of being slightly more transparent and putting down a marker that there are no legitimate reliance interests here.

    5. >But it is for Congress to extend it.

      I haven’t research the specific history of those examples, but in general: (i) there are a number of cases where Congress has enacted a statute to codify a pre-existing SCOTUS holding; and (ii) the Federal legislation/regulation may go beyond what is required by federal common law.

      Put differently, the fact that statues were passed doesn’t prove the courts didn’t or couldn’t act.

  10. “Whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation.”

    WRONG!

    At least in Massachusetts, not only can the hotel do that, but the person in charge of a *publicly-owned* building can do likewise. And for this very reason — see the South Hadley (MA) School Committee who trespassed every parent who wanted to express concern about the suicide of Phoebe Prince — and did so in front of astonished TV news crews.

    1. A problem with the Second Circuit’s decision in the Trump case is that speech discrimination in government-controlled areas is not prohibited outright. I used to participate a forum run by US DOT. The feds routinely deleted off-topic messages. You could say “Your rule is bad because most intersections in old cities do not have adequate sight triangles under AASHTO standards.” That was on topic. You could not start with “I got a ticket for crossing the double yellow” and proceed to ask for help. Not the purpose of the forum. School boards and city councils also have some right to control speech in their meetings. Plenty of court cases involve a would-be speaker getting arrested and making the court decide whether the arrest was wrongful retaliation for disagreement or justifiable enforcing of rules.

      As far as I know Twitter does not offer users a way to explain their blocking decisions. For regular users it just doesn’t matter. You’re annoying, go away. For government accounts it could help the next time a case like this comes up.

      1. Your analogizing Trump’s blocking his Twitter account to the particular DOT forum would appear to fail.

        Trump’s account belonged to a politician who trumpeted his political actions on the account. Barring those who were critical of him and / or his policies is not the same as those who posted irrelevant messages on the particular DOT forum.

        1. Your attempt to draw a line is not convincing. In particular, it doesn’t engage with any of the announced rules on viewpoint discrimination by government, much less those laid out in the Second Circuit’s decision. “If the Account is a forum—public or otherwise—viewpoint discrimination is not permitted.” A fortiori, if the DOT forum is a forum, viewpoint discrimination is not permitted.

          1. He wasn’t talking about viewpoint discrimination. He was talking about content discrimination. They’re distinct concepts.

        2. He fired multiple people across Twitter, started fights with foreign governments on Twitter, announced new military hiring policy on Twitter. And he did all this without first going through the proper channels.

          Trying to hand-wave that as “trumpeted his political actions” ignores that his political actions were on Twitter, not just reported on Twitter, or announced on Twitter. Twitter was the primary source for this stuff.

  11. (the case in which the Second Circuit held that President Trump violated the First Amendment by blocking certain users from his Twitter account).

    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.

    Wait, what?

    1. They’ve done a bit more than that, if I understand correctly: He’s basically an unperson on FB, Twitter, and Youtube: Not only can’t HE post, if YOU try posting a recording of him saying something, it will be treated as a violation of TOS, and taken down. Try again, and you risk being banned yourself.

      1. Testing “facebook” testing

      2. Testing “youtube” testing

      3. Testing “twitter” testing

      4. Testing “yadayada” testing

        1. Just checking: Looked for a moment that FB got notified if you mentioned them here, but apparently not.

  12. Would professor volokh’s argument—that federal laws preempting state laws which protect speech against private action trigger first amendment review—apply to the bill of rights more broadly?

    Say there is a federal constitutional hook (spending condition) that immunizes private parties from privacy suits for searching customers and employees. Might this trigger Fourth Amendment review?

    Similarly, say Title 6 immunized funding recipients from state suits over racial/national origin discrimination, when those state causes of action provide more protection than the fourteenth amendment (CA prop 209 prohibits all affirmative action, even plus-factor sophistry). Might this trigger fourteenth amendment review? (or would it be 5th Amendment, as “the federal statute is the source of the power and authority by which any private rights are lost or sacrificed”?)

    1. And Section 230 were analyzed under the first amendent (say Florida enacts a law barring viewpoint discrimination on private platforms) would it trigger strict scrutiny review, as 230 mentions good faith removal of content that is “lewd” “lascivious” etc.?

      1. No comment on your analysis, but “emanate in my penumbra” is a pickup line.

        1. You rapscallion!

        2. Well I hope you are swooning, Mr. Esper 😉

  13. “I suspect Justice Thomas’s opinion will be heavily cited”

    That this work of partisan judicial activism — not persuasive enough to attract a single colleague — is expected to be heavily cited may say plenty about a journal.

  14. Pretty big joke honestly. I don’t fault anyone musing that Congress should do something (though *what* is crucial) but to act as if they at all approach common carrier is rubbish. Was myspace also supposed to be subjected to this? Hmm…

    1. but to act as if they at all approach common carrier is rubbish

      Is it? What legal definition of telecommunications common carrier are you using that the internet services in question do not even approach?

      1. Wuz, apparently you are trying to argue that common carriers and big internet platforms are almost alike. But you are doing it wrong. That gives you misleading confidence in the wrong conclusion.

        The problem isn’t so much that internet platforms feature characteristics similar to common carriers. The problem is that internet platforms have features common carriers do not have. And those are not trivial details, those differences are right at the heart of the business models for both classes.

        Internet platforms are in fact publishers, which common carriers never are. You can tell that about the internet platforms because their business models center around assembling audiences and selling advertising to other businesses that want to reach audience members. A business model of that sort is the defining feature of a typical publisher. The fact that internet platforms rely on that business model proves they are publishers, regardless of attempts to use legal hocus pocus to say otherwise.

        It matters to keep that in mind. If internet platforms are publishers—as they are—attempts to manage them legally—no matter what they are called—will end up affecting other publishers as well. The law loves analogies, and if you make some publishers common carriers by law, unavoidable analogies with other publishing activities will suck them into that newly-regulated regime as well.

        Common carrier business models are not about any of that, because common carriers are not publishers, except in the most tiny, incidental sense—such as transit ads, which account for microscopically small fractions of income or expenditures. Common carriers are thus categorically different than internet platforms, and the two classes cannot be treated alike by the law without making a mess.

        For instance, continuing agitation to convenience government interference in publishing by censoring one class of publishers (misleadingly labeled common carriers) is unwise. It can only result in legitimizing government censorship applied more generally, to other publishers.

        If giant internet platforms have become problematic publishers (and they have), some remedy other than censorship ought to be sought. Given that the entire publishing giantism phenomenon was enabled by passage of Section 230, repealing Section 230 is the obvious candidate to begin a remedy.

        This entire debate is mis-focused. The question should not be so narrow—”What should we do about internet giants?” The question should be broader, “What is the best way to take advantage of internet capabilities to enhance speech opportunities, while also fostering diversity and profusion among private publishers?” Diversity and profusion among private publishers is the resource the nation cannot afford to lose. In a debate cast as it is now, that issue hasn’t even got a seat at the table.

        1. You can tell that about the internet platforms because their business models center around assembling audiences and selling advertising to other businesses that want to reach audience members. A business model of that sort is the defining feature of a typical publisher.

          You’ve been told, of course, that this definition is wrong. You, of course, will therefore keep repeating it.

          1. Nieporent, what do you suppose is wrong about it? That internet Nieporent what is wrong with it? That platforms do what I say they do? Is that wrong? That business practices platforms use echo characteristic activities (which I named) of businesses forming the bulk of the publishing industry? Is that wrong? That common carriers do business otherwise, and do not rely on characteristic publishing activities to conduct their business? Is that wrong? That internet platforms do not raise the bulk of their revenue by use of the business models of common carriers, and therefore neither class much resembles the other? Is any of that wrong?

            No, those are self-evident facts. You would be a fool to deny any of them. Together, they make my points better than empty condescension makes yours—admittedly a low bar to get over. You should try to do better.

            1. Oh well, first line is a mashup. I thought something was wrong, but couldn’t get the cursor to go high enough to see it, so concluded it had been deleted accidentally. But there it is. Should read,

              “Nieporent, what do you suppose is wrong about it? That platforms do what I say they do? etc. . . .”

              1. What I suppose is wrong with it is that this isn’t the definition of publisher.

  15. ” the internet services”

    Pretty vague.

    Are you talking Comcast (which provides my entire internet services) or a single web site on that (Twitter)?

    Or maybe it’s like a totally content-specific general rule? Lol.

    1. 1st year law student ^^^^

      1. Make an actually substantive comment puss puss, come on, you can do it!

    2. “‘the internet services’

      Pretty vague.”

      “…the internet services in question…”

      Less vague.

      1. “I think the waves of the ocean are choppy!”

        “Ocean”

        “er, the Pacific.”

        “Still seems vague…”

        12″: Checkmate, LIB!

        1. Old Wharf Cove is breaking to bottom…

          🙂

        2. Maybe if you read the OP, it’ll say which internet services are in question? Just a thought.

        3. I mean, if you leave off the part of the quote that specifies which internet services, then sure it’s vague.

  16. This is a self-inflicted wound by Trump, and nothing more.

    The simple fact is that if he had acted properly, and used the official POTUS account for when he was speaking as the president, and used his personal account when he was speaking as a private citizen, the lawsuit would never have happened.

    The only reason it happened is that he mixed business and pleasure.

    And as any government employee over the last five decades can tell you, that’s a one-way trip to a fuck-up. When you’re speaking in uniform, or in your official role, you do not retain the same rights and priviledges as when you’re speaking as a private citizen.

    But Trump, and his whole administration, were unusually contemptuous of this; see the many and repeated Hatch Act violations.

    The entire problem was self-inflicted. If Trump, and his administration, had acted with any respect for the office, and the responsibilities he claimed to have shouldered, then we wouldn’t be having this conversation today.

    1. “we wouldn’t be having this conversation today”
      I rather doubt it. Trump may have been especially egregious in how he acted online but it’s not as if other current politicians don’t act similarly. And as (currently) younger people get elected more often it will have been a good thing we’re having it now.

      1. I agree — do you have any idea how many times I had to say “you do NOT wear your uniform to CPAC”?

        And I was just an academic adviser — I wasn’t even in the military (ever), let alone anyone’s commanding officer. These were not stupid kids, either — it was just a case of “what part of ‘thou shalt not’ do you not understand?!?”

        OK, a Class A *does* get attention from the girls, but what really disappointed me was how many of the purported “grownups” at CPAC didn’t realize that this was wrong, even if the kid didn’t get into trouble for it.

        1. I agree — do you have any idea how many times I had to say “you do NOT wear your uniform to CPAC”?

          None.

    2. “The simple fact is that if he had acted properly, and used the official POTUS account for when he was speaking as the president, and used his personal account when he was speaking as a private citizen, the lawsuit would never have happened.”

      The POTUS acts in a grey area here. Especially Trump. What’s just “campaigning”? What’s “official”? Legislators have their own twitter accounts they use all the time. And they block people as well. Are they “official” accounts if they’re talking about their views on law and Congress?

      1. It was black-and-white in 2016. It being a “grey area” is 100% because Trump was too lazy to switch accounts†.

        So seeing as he chose the “grey area”, he doesn’t get a pass.
        ________
        †There are probably more –and less– charitable explanations for his decision here. I’m going with “lazy”.

        1. Except Obama used his own “private” account fairly frequently as well.

          https://www.tweetbinder.com/blog/barack-obama-twitter/

          Part of the issue is, the “private” accounts for both Trump and Obama had more followers than the “official” account.

          1. Here’s some quotes.

            Oct 20, 2016
            LIVE: President Obama is in Miami talking about the progress made possible by the Affordable Care Act.

            Dec 18, 2010
            By ending “Don’t Ask, Don’t Tell,” no longer will patriotic Americans be asked to live a lie in order to serve the country they love.

            Holding a news conference at 4:15pm ET. Watch live:
            4:02 PM · Dec 22, 2010

            Ratifying a treaty like START isn’t about winning a political victory. It’s about the safety and security of the U.S.
            2:51 PM · Dec 20, 2010·Hootsuite

          2. Frequency isn’t the problem. It’s what account is he using for official business.

            But you knew that.

      2. Good point. And then they have fake ones — like Mitt Romney did — Pierre Delecto — although the more eggregious example was advisor Eric Fehrnstrom who mistakenly posted something intended for the “@CrazyKhazei” Twitter account in his own name. See: https://www.washingtonpost.com/blogs/the-fix/post/romney-aide-accused-of-assuming-fake-twitter-handle-atcrazykhazei/2011/08/24/gIQAxD3ebJ_blog.html

        Alan Khazei was then favored to win the nomination that Elizabeth Warren did, enabling her to defeat then US Senator Scott Brown (R-MA). IMHO, Fehrnstrom was way over the line here…

  17. Yes, Thomas is on the right track. GOP legislators are generally uninterested in actual legislation that would have an effect on these companies. Try these for starters:
    1. Regulate Google, Facebook, Twitter, Amazon, etc. as common carriers
    2. Make it a per se violation of anti-trust laws for a company to be over, say, $200 billion. Companies over $200 billion are automatically broken up.

    1. By this definition Tesla is a monopoly, which is a pretty hard notion to take seriously.

    2. I like it, the Louis Brandeis approach.

  18. Mark Joseph Stern has an interesting opinion concerning Justice Thomas’ “partisan hackery” and strained hypocrisy.

    1. “Mark Joseph Stern”

      As if we needed any more reasons to not take you seriously?

      1. You frequent and adore a blog that publishes Josh Blackman daily.

        You are a right-wing bigot in modern America.

        I decline pointers from you on what to take seriously.

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