Freedom of speech has always been a Constitutional right of Americans. We are allowed to say what we want to say without being silenced.
What happens when social media platforms silence us, though?
Clarence Thomas, one of the more conservative Supreme Court Justices, decided that it is time to offer clarification.
Thomas has identified that social media platforms may not have the right they think that they do to censor speech.
The case that led to such thought into social media and the freedoms of speech was Biden v. Knight First Amendment Institute, which was filed in 2017. Individuals had been blocked by former President Donald Trump’s personal Twitter account. The group alleged that the account was a public forum and that their First Amendment rights were being violated.
The high court chose to dismiss the challenge as moot.
After all, Trump’s personal Twitter account is not a public forum. However, if a person were tweeting on Twitter and mentioning him, Twitter would have to allow it as it falls into the category of a public forum.
Justice Thomas went on to author a 12-page concurrence which identified the larger question of whether a digital platform (such as Facebook or Twitter) has the right to block users. Such a question was not presented, though it needs to be addressed.
More and more news articles are being censored by Twitter, including those from such legitimate sources as the New York Post.
Thomas identified that Trump’s account resembled a constitutionally protected public forum but that “it was odd to say that something is a government forum when a private company has unrestricted authority to do away with it.”
The “unrestricted authority” is where there has been a lot of concern, particularly of late. It seems that Twitter is capable of being the judge, jury, and executioner of whatever they don’t like. They hide behind their terms and conditions, but they’re choosing to silence Americans each and every day when they take content down.
Thomas discussed in great detail how the petitions alleged that the digital platforms violated the First Amendment. The problem is that we’re dealing with historically unprecedented amounts of speech – including those by government actors. He’s not specifically referencing Trump. It’s easy to see that there are many members of Congress using Twitter from both sides. Alexandria Ocasio-Cortez on the left and Ted Cruz on the right are perfect examples.
“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.”
It seems as though the tables are about to turn. After Justice Thomas got through detailing how the social media platforms are to be defined, he identified that they do appear to have private and concentrated control over online content, which is available to the public.
It may be that doctrines are necessary to limit the rights that a private company has. The Supreme Court Justice went on to insinuate that platforms such as Facebook and Twitter may fall into the category of “common carriers.” This includes telecommunications services and public utilities. All have substantial market power, so it only makes sense that there would be government regulation.
Does this mean that Twitter, Facebook, and others may have to change the way in which they flag and remove posts and accounts? Absolutely.
Although there are differences because there’s no historical precedent for how to deal with social media platforms, it requires regulation. Terms and conditions cannot protect a private company when they decide that they are above the law.
Justice Clarence Thomas understands how social media platforms are impinging upon our Constitutional rights. The real question remaining is whether there are enough other judges who believe this to be true so that something can be done about it once and for all.
The next time a case shows up in front of the Supreme Court, Facebook and Twitter may be in for a rude awakening as they learn that they must allow people to say what they want, no matter how it might sit with their political leanings.