On Monday morning, Justice Clarence Thomas all but endorsed a fringe legal theory that would sharply limit social media companies’ ability to moderate content on their own platforms, stripping them of their own First Amendment rights to dissociate with speech they dislike. This radical idea has no basis in the Supreme Court’s constitutional jurisprudence—but it is popular among Republicans who accuse social media companies of censoring conservative speech. Thomas appears to have waded into the fever swamps of right-wing paranoia and come out with the conviction that courts and Congress must bring Big Tech to heel by jettisoning basic constitutional principles. This view would seem to conflict with the justice’s belief that corporations hold a First Amendment right to anonymously spend unlimited amounts of money influencing elections, but in the clash between Thomas’ legal tenets and (likely) political persuasions, partisan hackery has won out.
Monday’s opinion arose out of the long-running dispute over Donald Trump’s habit of blocking critics on Twitter. While he was president, multiple users sued him for blocking them; a federal appeals court held that his actions violated the First Amendment because they constituted viewpoint discrimination in a public forum. Trump appealed, but the Supreme Court sat on the case until he left office. Now that Joe Biden is president, the justices have declared the case moot. At the same time, the court turned away right-wing conspiracy theorist Laura Loomer’s lawsuit against social media companies that banned her.
While Thomas concurred in the dismissal of both cases, he seized upon the Trump-Twitter dispute to discuss “the principal legal difficulty that surrounds digital platforms—namely, that applying old doctrines to new digital platforms is rarely straightforward.” Specifically, he complained about “the concentrated control of so much speech in the hands of a few private parties.” That’s certainly a fair concern, and, to their credit, both political parties are attempting to wield antitrust law to reduce this concentration of power.
But Thomas does not seem interested in antitrust. Instead, he wants to remake American law by effectively revoking social media companies’ free speech rights and compelling them to host almost any content. Conservative activists and politicians, most famously Trump himself, have supported this approach and even filed lawsuits (including Loomer’s) seeking to implement it by claiming that social media companies’ content moderation policies violate the First Amendment. But they have all failed because the First Amendment applies only to the government, not to private actors. By definition, then, Facebook, et al., cannot violate anyone’s constitutional rights by removing their speech. Moreover, social media companies themselves hold First Amendment rights, including the right to disassociate with expression they do not wish to host. Just as the government can’t force a newspaper to publish a certain op-ed, it can’t order Facebook to publish Loomer’s anti-Muslim rants.
Or so virtually every mainstream legal commentator thought. Before Monday, it was safe to laugh off the legal assault on content moderation as a fringe fantasy pushed by conservative cranks and grifters who want to string along their Big Tech–hating donors with the delusion of turning every social media platform into Parler or 8chan by court order. After Monday, however, the threat feels a lot more real, because this coterie now has a Supreme Court justice on its side.
“If part of the problem is private, concentrated control over online content and platforms available to the public,” Thomas declared, “then part of the solution may be found in doctrines that limit the right of a private company to exclude.” He began with the “common carrier” doctrine, an idea he may have cribbed from Federalist Society stalwart Richard Epstein. (Non-lawyers may know Epstein from his prediction that COVID would kill fewer than 500 Americans, a belief that informed Trump’s early pandemic response.)
“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,” Thomas wrote. “There is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers,” including telegraphs. The government may give these companies “special privileges,” like immunity from certain lawsuits; in exchange, “governments have limited a company’s right to exclude when that company is a public accommodation.”
According to Thomas, 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.” Why? Thomas gives several reasons: These platforms “carry” information between users, they “hold themselves out as organizations that focus on distributing the speech of the broader public,” and, through the much-discussed Section 230 of the Communications Decency Act, they receive immunity from lawsuits based on third-party content. He added that control of digital platforms is “highly concentrated,” giving them “enormous control over speech.” As an example, he wrote that “Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.” This case in point may be an allusion to Amazon’s recent delisting of Ryan Anderson’s anti-trans book. (Anderson and Thomas are friends.)
Thomas also put forth a second theory to justify a ban on content moderation: Digital platforms have become “places of public accommodation,” like a hotel or restaurant. The government can bar these businesses from discriminating against customers. Perhaps, Thomas theorized, it can also call digital platforms “public accommodations” and bar them from discriminating against users’ speech.
Most of the justices’ opinion is meant to “give legislators strong arguments” for “regulating digital platforms” like common carriers or public accommodations. But in an especially zany aside, Thomas suggests that users may be able to combat content moderation right now through the courts. This section of the opinion verges on incoherence, but Thomas seems to think that users could sue the government for pressuring social media companies to remove certain speech. And he implies that Section 230, the rule that made the modern internet, may be unconstitutional because it prevents users from suing social media companies for “private censorship” under state law. To support this proposition, Thomas cited a blog post. (His exceptionally silly critique marks the second time the justice has taken aim at Section 230.)
What should we make of this mess? To my mind, there are three notable ironies and one alarming takeaway.
Start with the ironies. First, Thomas has long argued that corporations have a First Amendment right to spend unlimited sums of money both electioneering and funneling cash to candidates. Alone among the justices, he has insisted that corporations have a right to do all this in secret, free from disclosure requirements. Now, however, Thomas claims that certain corporations—namely, those he dislikes—have little or no right to engage in free speech activity that lies at the heart of the First Amendment: disassociating with expression they do not support. Less than three years ago, Thomas believed this freedom from compelled speech was so important that it justified overturning 40-year-old precedent and invalidating laws in nearly half the states. Now he tosses it to the side because he hates Mark Zuckerberg.
Second, Thomas is perhaps the Supreme Court’s chief skeptic of public accommodation laws, particularly when they infringe on free speech. In 2018, the justice argued that Colorado’s public accommodation law could not force a baker to make a wedding cake for a same-sex couple because the act of cake making involved expression. That argument should apply with exponentially more force here, since social media companies’ entire business is expression. Yet, according to Thomas, baking a cake receives robust First Amendment protections while choosing which speech you will express on your own platform does not.
Third, Thomas is the Supreme Court’s most business-friendly justice—yet his Monday opinion sounds borderline Marxist. Shoehorning a precedent about fire insurance into the context of social media, the justice wrote that when a company rises from private “to public concern,” its property is “but its instrument, the means of rendering the service which has become of public interest.” The same argument could apply to almost any business that serves the public interest, imperiling private ownership of everything from colleges to farms to housing. Does Thomas want to seize the means of production?
Monday’s opinion is not actually reason for alarm about the future of the Supreme Court’s First Amendment jurisprudence. Thomas is almost certainly alone among the justices in his extreme beliefs; even if a few other conservatives are sympathetic to his battle cry, they are not going to burn up political capital on such a hypocritical lost cause. What is alarming, rather, is that Thomas is so consumed by Trumpist loathing of social media that he will toss his beliefs out the window to write a solo opinion that will, at most, freak out Twitter’s in-house counsel. It is probably worth noting here that Thomas is personal friends with right-wing talk show host Dennis Prager, who incessantly complains of digital censorship and files ridiculous lawsuits to combat it. And it is relevant to point out that the justice’s wife, Ginni Thomas—also friends with Prager—routinely groused about online censorship of conservative speech before deleting her Facebook page in January.
Congress is not going to declare that social media companies are common carriers or public accommodations. Courts are not going to strike down Section 230. Nothing of substance will change in light of Thomas’ rant. Conservative grifters will put his opinion in their emails when they beg donors for more money to fight Big Tech. Republican senators will put out videos (on Twitter) claiming victory because a single justice has adopted their view. Laura Loomer will continue to frame her social media ban as near-genocidal persecution. It will all be sound and fury, signifying nothing more than the final collapse of the conservative movement’s last remaining shred of consistency.