Conservative pundits and politicians have long complained of censorship at the hands of leading tech firms, though many have been uncertain about what remedies they might have in an effort to fight back.
That might soon be changing, however, in light of U.S. Supreme Court Justice Clarence Thomas’s recent determination that the time has come to reconsider how social media platforms are treated under the law.
“In the hands of a few private parties”
According to reports, Thomas published a concurrence on Monday in which he signaled that the courts “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
He went on to note that existing “digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” leading to a similarly unprecedented concentration of power “in the hands of a few private parties.”
In reference to the underlying case being considered, Thomas took particular note of a lower court’s ruling that prohibited former President Donald Trump from blocking individuals from his Twitter account while the social media company had been allowed to ban Trump altogether in the wake of January’s riot on Capitol Hill.
“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,” the justice asserted.
Thomas declared that Twitter’s decision to kick Trump off of its site prevented “all Twitter users from interacting with his messages.”
“There is clear historical precedent”
In his view, social media platforms should be held to a different standard, pointing out that “there is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers.
The legal determination found plenty of support among conservatives, but critics on the left — including Slate magazine’s Mark Joseph Stern — sounded the alarm.
“Legal scholars often talk about how fringe constitutional arguments go from ‘off the wall’ to ‘on the wall,'” he tweeted on Monday.
Citing Thomas’s statement, Stern argued that the justice had taken “a huge step toward moving arguments against social media companies’ right to engage in content modification ‘on the wall’ — into the mainstream.”
Stern later alleged that Thomas based his determination on “right-wing fears that Twitter, Facebook, etc. are censoring conservative speech.”