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Even with former President Donald Trump now out of office, lawyers and legal consultants are still very busy. They have been getting very involved in legal court cases that could ultimately shape the future of social media. More specifically, they are deciding the future of free speech on social media. Like it or not, we live in an era of censorship, de-platforming and shadow banning. And now recent court decisions are starting to show how legal thinking on these issues is starting to shift. Case in point: a recent legal decision by the Supreme Court of the United States, in which Justice Clarence Thomas weighed in very heavily on the subject of free speech.
Clarence Thomas and free speech
At issue was a lower court ruling that suggested that former President Donald Trump violated the First Amendment rights of people that he had blocked from his social media accounts. According to the lower court, Trump was a “public official” and his public Twitter account was therefore held to much different standards than that of a typical citizen. You and me, we can ban whomever we want from our Twitter feeds, but public officials can’t do that – it’s akin to shutting down the rights of others to free speech. At least, that’s the way the lower court saw it.
Justice Clarence Thomas used his opinion in the Supreme Court case to give much greater insight and clarity into the way he felt lawyers and judges should be thinking about free speech in the digital era. As Thomas sees it, “Applying old doctrines to new digital platforms is rarely straightforward.” In other words, if you’re trying to use laws and legal precedents from the pre-Internet days to define what the likes of Facebook can do today, then you’re doing it all wrong.
Section 230 and free speech
And Thomas had a very specific “old doctrine” in mind – Section 230 of the Communications Decency Act. Under the terms of this legal doctrine, Twitter and Facebook are “platforms” and not “publishers,” and can do basically whatever they want. As long as they claim to be acting in good faith, they can ban, shadow ban, censor or de-platform whenever and whomever they want, and they have full legal immunity. As Thomas pointed out, Big Tech has “vast and largely unchecked control over online marketplaces.” With a push of a button, Facebook has the power to shut down debate on any topic.
Moreover, there are no good “alternatives” to Facebook and Twitter. As Thomas noted slyly, you could swim the Charles River in Boston if you wanted to get around the city, but is that really an “alternative” to using a means of Boston public transportation? And right now, there are no viable alternatives to Facebook or Twitter, so the legal debate needs to change. Like it or not, Google is now the gatekeeper to all the world’s information, and the Big Tech social media platforms get to decide what gets talked about, and what doesn’t.
What Thomas suggested was that Facebook and Twitter are now acting like “common carriers,” such as a public utility. Just as an electric power company couldn’t deny service to a Trump hotel property, or a phone company couldn’t block phone calls coming out of Trump Tower, a public utility such as Facebook or Google shouldn’t be able to block social media service to Trump.
Re-thinking social media
Right now, there is no good explanation for what a social media company really is. They aren’t platforms, that’s for sure. And they aren’t really publishers, either. And it’s pushing things a bit to say that they are public utilities. So what are they? That’s why lawyers get paid the big bucks. They need to figure out what’s going on here. It’s too easy to sit back and claim that Justice Thomas is some kind of “radical” or “fringe” legal thinker. But the guy is really smart, and his arguments make a lot of sense. If American democracy is going to flourish, then it needs free speech and it needs open, transparent debate. Even if we disagree on everything else, we can surely agree on this.