In 2017 the Court of Appeal of the 2nd circuit ruled that the president of the United States Twitter account is a constitutionally protected public forum limiting the President\’s power to block users who criticize him on the platform. In 2021 Twitter proved the Court of Appeal 100% wrong by asserting absolute control over several government accounts, including the former president\’s, and completely blocking over 89 million users from interacting with these accounts.
Yesterday, Biden won the case for Trump (sort of). The 2nd Circuit judgment was vacated by SCOTUS and remanded to the court of appeal with instructions to dismiss the case. A concurrent judgment by Justice Thomas sheds light on the questions that the Supreme Court wants to have brought before them to determine whether or not Twitter can keep removing government accounts with the same immunity afforded by s.230. Among recommendations for reform, the Court suggests limiting s.230 immunity to defamation suits and maintaining liability for discrimination, the way it was for telegraphs in the 1940\’s. The analysis points to a the beginning of a new era of accountability for Twitter, Facebook, and Google.
Here are my highlights:
\”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.\”
\”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\”.
\”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.\”
\”Whether governmental use of private space implicates the First Amendment often depends on the government\’ control over that space.
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.
But whatever may be said of other industries, there is a clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers.\”
On the highly concentrated control of dominant digital platforms:
\”Much like with communications utility, this concentration of 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. Facebook and Twitter can greatly narrow a person\’s information flow through similar means. And, as the distributor of the clear majority of e-books and about half 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.
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 space.\”
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.
Thomas, J., concurring