The Supreme Court rejected the opportunity to hear a case involving former President Donald Trump and Twitter. The case was to hear whether the President has the ability to block people from seeing his Twitter feed.

In concurrence with the decision to not hear the case, Clarence Thomas issued a 12 page letter about Social Media Platform regulation, and effective means that government could use to ensure the free speech of every American is protected.

Thomas even mentioned Tech Overlords of Facebook and Google.

“Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin)”

Thomas argues in his letter…

“The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages.”

Thomas went on to suggest that regulating tech companies as ‘Common Carriers‘ could be an avenue to ensure freedom of speech. The argument being that these companies are so vital to communication that we must regulate them to ensure equal, fair, and legal treatment of individuals.

Thomas went on to say…

“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. Historically, at least two legal doctrines limited a company’s right to exclude.”

First, 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. Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J. L. & Tech. 391, 398–403 (2020) (Candeub) see also Burdick, The Origin of the Peculiar Duties of Public Service Companies, Pt. 1, 11 Colum. L. Rev. 514 (1911).

Justifications for these regulations have varied. Some scholars have argued that common-carrier regulations are justified only when a carrier possesses substantial market power. Candeub 404. Others have said that no substantial market power is needed so long as the company holds itself out as open to the public. Ibid.; see also Ingate v. Christie, 3 Car. & K. 61, 63, 175 Eng. Rep. 463, 464 (N. P. 1850) (“[A] person [who] holds himself out to carry goods for everyone as a business . . . is a common carrier”).

And this Court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when “a business, by circumstances and its nature, . . . rise[s] from private to be of public concern.” See German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 411 (1914) (affirming state regulation of fire insurance rates). At that point, a company’s “property is but its instrument, the means of rendering the service which has become of public interest.” Id., at 408.”

Thomas continued…

“This latter definition of course is hardly helpful, for most things can be described as “of public interest.” But whatever may be said of other industries, there is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers. Candeub 398–405. Telegraphs, for example, because they “resemble[d] railroad companies and other common carriers,” were “bound to serve all customers alike, without discrimination.” Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 (1894).

In exchange for regulating transportation and communication industries, governments—both State and Federal—
have sometimes given common carriers special government favors. Candeub 402–407. For example, governments have
tied restrictions on a carrier’s ability to reject clients to “immunity from certain types of suits”3 or to regulations that
make it more difficult for other companies to compete with the carrier (such as franchise licenses). Ibid. By giving these companies special privileges, governments place them into a category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken.

Second, governments have limited a company’s right to exclude when that company is a public accommodation.
This concept—related to common-carrier law—applies to companies that hold themselves out to the public but do not
“carry” freight, passengers, or communications. See, e.g., Civil Rights Cases, 109 U. S. 3, 41–43 (1883) (Harlan, J.,
dissenting) (discussing places of public amusement). It also applies regardless of the company’s market power. See,
e.g., 78 Stat. 243, 42 U. S. C. §2000a(a).”

Thomas also said

“The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms

The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him,” wrote Thomas. “But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms.”

Thomas most importantly said

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

Twitter has permanently banned President Trump for ‘inciting violence’. Social media companies like Facebook and Twitter have been censoring people for political speech for a very long time.

I’ve dealt with it, and deal with it still every single day.

The importance and reach of these platforms make them the modern town square. Millions have been taken out of the public discourse for years. I fear any regulation from government will be too little too late.

Millions have tuned out because of censorship. However, it is still a necessary step to ensure equality of opportunity for every American. I applaud Justice Thomas for having the courage to outline the corruption of these companies.

Congress needs to act to, at least, remove the section 230 clause that allows for special legal protections. Social media companies that censor their users should not receive ‘platform’ privileges. They are acting as publishers when they censor.

Removing Section 230 MUST be the first step in curbing social media censorship. Once that has been done, further evaluation of the situation should take place in order to determine whether to pursue an answer a drastic as Thomas outlines. We should always treat the expansion of government control with this kind of scrutiny.





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