The Volokh Conspiracy

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Justice Thomas Highlights that in the Civil Rights Cases, Places of "Public Amusement" Were Not Traditional Common Carriers

Justice Thomas highlighted an under-appreciated aspect of Justice John Marshall Harlan's dissent


Justice Thomas concurred in the Court's denial of cert in Biden (formerly Trump) v. Knight First Amendment Institute. Eugene wrote a thorough analysis of Thomas's First Amendment arguments. (He is too modest to note that Justice Thomas cited his January post).

Here, I'd like to flag a fairly minor, but important discussion.

Thomas suggested that tech companies like Twitter should be treated like common carriers. And he reached back to a very important decision: Justice John Marshall Harlan's dissent in the Civil Rights Cases. Thomas wrote:

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. See, e.g., Civil Rights Cases, 109 U. S. 3, 41–43 (1883) (Harlan, J., dissenting) (discussing places of public amusement).

Justice Harlan spent several pages discussing why places of public amusement, such as theaters, could still be regulated by the Civil Rights Act. Randy and I discuss this history in our 100 Cases book:

Justice John Marshall Harlan was the lone dissenter. He did not deny the textualist claim that only state action can violate the Fourteenth Amendment. Instead, Harlan contended that discrimination by the inns, hotels, and theaters, in fact, constituted state action. Under the common law, he wrote, so-called common carriers and inns were obligated to accept all paying customers from the general public. Because these businesses each had a monopoly, they had a common-law duty not to discriminate against potential customers. Justice Harlan admitted that so-called public amusements, such as theaters, were not traditionally treated like inns or common carriers. Nevertheless, theaters required a public license to operate, and the state governments who granted such licenses were servants of all the people. Justice Harlan concluded that Congress had the power to ensure that all citizens had access to these public spaces.

It is fitting that Justice Thomas is, once again, relying on the great dissenter.