High court’s Thomas ponders regulating social media firms
With Donald Trump gone from the White House, the Supreme Court dismissed a suit Monday that accused Trump of violating free speech by blocking critics from his Twitter account, which the company canceled after the mob attack on the U.S. Capitol. But Justice Clarence Thomas said the case highlighted social media’s virtually uncontrolled power and it may be time for Congress to step in.
“If the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves,” Thomas said in a separate opinion in the Twitter case. “The concentrated control of so much speech in the hands of a few private parties” is unprecedented and should be addressed by the courts or Congress.
While agreeing with his colleagues that the lawsuit accusing Trump of abusing his presidential powers was now moot, Thomas said the proper remedy for other “dissatisfied platform users” could be a law treating Twitter, Facebook and Google like railroads or other common carriers, which must serve all their customers.
His comments were similar to complaints by other conservatives that social media are out of control. In another case Monday, the court denied review of
an appeal by conservative advocacy groups from lower courts’ dismissal of their suit accusing Google, Facebook, Twitter and Apple of liberal bias and censorship.
Trump was sued in 2017 for barring critics and their comments from his @realDonaldTrump account on Twitter, which then had 35 million followers and eventually grew to more than 88 million. While private citizens have a right to control access to their accounts, federal courts ruled that Trump was acting under his presidential authority — noting that he had used the account to announce White House personnel decisions and his ban on transgender military service, among other actions — and thus was bound by the First Amendment.
Trump’s Justice Department appealed to the Supreme Court, saying the lowercourt rulings endangered the right of “officials—from the president of the United States to a village councilperson — to insulate their socialmedia accounts from harassment, trolling or hate speech without invasive judicial oversight.”
On Monday, the high court dismissed the case because it no longer presents an active controversy, with the end of both Trump’s presidency and his Twitter ac
count. Twitter suspended the account on Jan. 6 after Trump tweeted praise of the Capitol attackers, reinstated the account after he deleted the posts, but canceled it permanently Jan. 8 after the president posted another tweet calling his supporters “American Patriots.”
Thomas did not mention those events in his opinion Monday. But he questioned the lowercourt rulings that classified Trump’s Twitter account as a “public forum,” governed by the Constitution, because it had been used for official actions.
“It seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” Thomas said.
The lowercourt rulings in the case can no longer be cited as legal precedent. But they have sent a message to other U.S. courts about the misuse of government officials’ social media accounts, said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, which represented seven Twitter users who sued Trump.
“This case was about a very simple principle that is foundational to our democracy: Public officials can’t bar people from public forums simply because they disagree with them,” Jaffer said.
The cases are Biden vs. Knight First Amendment Institute, No. 20197, and Freedom Watch vs. Google,