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How Supreme Court Justice Clarence Thomas wants to fix social media

April 5, 2021, 11:54 PM UTC

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Supreme Court Justice Clarence Thomas wants to rein in social media companies and he has an idea of how to do it: Regulate them like public utilities. 

In a response to a Supreme Court ruling on Monday over former President Donald Trump blocking his critics on Twitter, Thomas argued that companies like Facebook, Twitter, and Google have too much power to kick people off their services or make their content harder to find. To fix that, he said that legislators will soon “have no choice” but to pass new laws that curtail the power of social media companies to choose who’s voices are heard.

“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” Thomas wrote. “Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.”

Thomas’ solution is for the federal government to at least partly regulate social media companies as “common carriers” like telecommunications services and public utilities. If so, they would be required to host user posts regardless of what those posts say, much like phone companies host all telephone calls despite their content.

Thomas argued that social media companies and telephone companies are similar in a couple of key areas. First off, social media carries information from one person to another, similar to telephone companies. Secondly, like phone utilities, tech giants have no “comparable competitors” and hold immense control over speech. 

“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,” Thomas wrote.

Currently, social media services set their own policies that let them kick users off as they see fit. And like other Internet services, they also have special protections under Section 230 of the Communications Decency Act, which prevents the companies from being held liable for what their users post.

Under Thomas’ plan, social media users would be able to post misinformation and hate speech. But they could still remove posts that are not protected by the First Amendment like child pornography or incitement to commit illegal acts.

Critics argue that Thomas’ approach strips Internet services of the power to keep their services safe. They worry that without legal protections that let services police the content their users publish, harmful posts will become an even bigger problem and could lead to even more real-world consequences.

By weighing in on the topic in a Supreme Court decision, Thomas is dialing up pressure on lawmakers to change current regulations. He’s also echoing claims by conservatives who say that social media companies are unfairly censoring their views.

Thomas’ response is the latest addition to a growing bipartisan call for Section 230 reform. After laying out his opinion over 12 pages, he ended by recognizing that the case at hand—Trump blocking his critics— doesn’t allow the court to address the larger issue.

“If the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves,” he says. “This petition, unfortunately, affords us no opportunity to confront them.”

Thomas was the only justice to include his comments on the ruling of the nine Supreme Court Justices. The court ultimately dismissed the Trump case, saying it was “moot” because Trump is now out of office.