"Perhaps Twitter, not government, is the real public forum subject to regulation."
Justice Clarence Thomas, the longest-serving member of the US Supreme Court and only the second African American to sit in the High Tribunal, has added his voice in the ongoing debate on how to regulate Big Tech. In a concurring opinion in the Court’s decision to dismiss as moot a lawsuit against former President Donald Trump over his blocking of some comments on his Twitter account, Thomas opined that Twitter itself may be the real public forum worthy of regulation as it permanently muted Trump himself even before he left office last January.
That issue of whether Twitter and the other social media companies, Amazon, Facebook and Google – Big Tech as they have been referred to in the US and other countries -- are the public forums requiring oversight has become such a global concern as a result of their platforms’ over powering control over public discourse and debate on any and all subjects under the sun.
In the US, both sides of the debate, progressives and conservatives alike, have voiced alarm over
the seemingly arbitrary decisions of these companies to delete contents and even platform users as in the case of Trump.
In fact, Twitter’s banning of Trump prompted Senator Bernie Sanders, a known progressive icon and Trump critic, to publicly voice concern over that kind of unregulated power which can also cut him and other users from the platform for whatever reason begging the question: Which has more power, government or Big Tech? That overarching, unrestricted power has become the bane of most Big Tech users, public and private, worldwide prompting calls for governments to step in and restrain them.
To recall, in the case at bar the US Second Federal Appeals Court ruled that Trump’s Twitter account was a public forum subject to free speech protection. In its order, the High Tribunal not only mooted the lawsuit as with the change in administration; it also vacated the decision completely thus leaving unanswered whether government Twitter accounts are public forums. That opened a window for Justice Thomas to note that perhaps Twitter, not government, was the real public forum subject to regulation.
In his extended opinion, Justice Thomas noted that a First Amendment (free speech) review by the courts might very well uphold statutes that treat social media platforms as common carriers or places of public accommodation and restrict their ability to remove content on their systems based on political point of view. Thus, Justice Thomas, said: “If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.” Citing historical regulations and requirements placed on “common carriers,” such as railroads and phone companies, requiring them to serve
the general public, and similar laws governing gathering places such as restaurants and amusement parks, he opined that it may already be time for Congress to step in and rein in the power of Big Tech in the name of free-speech principles.
But even if Congress has yet to legislate a responsible regulatory framework on the workings of Big Tech, Justice Thomas said that it may indeed be timely to put a restraint on their powers to “do whatever they want for any reason at all” on their platforms. “If the aim,” Thomas notes, “is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. 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.”
The good Justice provided two Supreme Court decisions to support his proposition on how to handle Big Tech. In the 1980 case Prune Yard Shopping Center versus Robins, the High Tribunal held that “California could require private malls to allow pamphleteers seeking to orderly distribute reading materials inside the malls without infringing on the free-speech rights of the mall itself.”
Earlier, the Supreme Court ruled in the Marsh versus Alabama case that the free-speech clause can apply to speech occurring on purely private property. In that ruling, the court found that the First Amendment prohibited a “company town” from using the police or courts to enforce trespassing laws against Jehovah’s Witnesses who were handing out literature on a purely privately owned and maintained sidewalk.
Thus, the High tribunal held: “[Private] ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Since their operation is essentially a public function, it is subject to state regulation.”
To emphasize the point, the Court ruled: “Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. To act as good citizens, they must be informed. In order to enable them to be properly informed, their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.”
Given the increasing numbers of complaints about deletion of posts, suspension of accounts or, worse, as in the case of Trump a permanent ban on the use of their platforms, it should not be stretch to insist that this ruling can equally apply to Google, Amazon, Facebook and Twitter as their digital platforms are definitely akin to the community towns mentioned in that Marsh decision. Even more compelling, as one noted lawyer advised, these Big Tech companies have contractual obligations which they are obliged to follow apart from the fact that they have become, in this day and age, the carriers of conversations, information and other public concerns affecting the lives and properties of people which definitely impact the very standing of nations and states. It is time they accounted for their deeds – or misdeeds.