Deconstructing Justice Thomas' Pro-Censorship Statement

from the not-how-any-of-this-works dept

Last week, we had a post about Supreme Court Justice Clarence Thomas' very weird statement in a concurrence on mooting an unrelated case, in which he seemed to attack free speech and Section 230. Law professor Eric Goldman has written up an incredibly thorough response to Thomas' statement that we thought the Techdirt community might appreciate, and so we're reposting in here.

Last week, the Supreme Court vacated the Second Circuit’s Knight v. Trump ruling. The Second Circuit held that Trump violated the First Amendment when he blocked other Twitter users from engaging with his @realdonaldtrump account. Other courts are holding that government officials can’t block social media users from their official accounts, but they can freely block from personal or campaign accounts. Vacating the Second Circuit opinion probably won’t materially change that caselaw.

That outcome was overshadowed by a concurring statement from Justice Thomas wherein he again embraced censorship. I blogged a similar statement from Justice Thomas from the October 2020 cert denial of Enigma v. Malwarebytes. That time, Justice Thomas criticized Section 230 by addressing topics he wasn’t briefed on and clearly did not understand. This time, his statement is even more unhinged and disconnected from the case at issue. It’s clear Justice Thomas feels free to publish whatever thoughts are on his mind. This is what bloggers do. I think he, and all of us, would benefit if he moved his musings to a personal blog, instead of misusing our tax dollars to issue official government statements.

Justice Thomas’ statement ends (emphasis added):

As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. 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. This petition, unfortunately, affords us no opportunity to confront them.

So Justice Thomas acknowledges he wasn’t briefed on any of the interesting topics he wanted to discuss. He’s just making stuff up. This isn’t what Supreme Court justices do, or should do. I’m a little surprised that his colleagues haven’t publicly rebuked him for writing free-association statements. Such statements hurt the court’s credibility and abuse the privilege afforded Supreme Court justices.

Justice Thomas starts with an apparent contradiction he positions as a gotcha. The Second Circuit said that Trump created a public forum on Twitter, so Justice Thomas wonders how that could be when Twitter could unilaterally shut down that public forum. He says public forums are “government-controlled spaces,” but any “control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority.” Still, Justice Thomas himself acknowledges that if the government rents private real property and uses it to create a public forum, it’s still a public forum even when a private landlord has the unilateral right to terminate the lease and evict the government. So….where’s the gotcha?

Having failed to define that problem, Justice Thomas manufactures a strawman. He says: “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.” Notice the conditional grammar to assume a problem without proving it. This is the foundation for a discussion about hypothetical solutions to hypothesized problems.

The two doctrines that “limit the right of a private company to exclude” are common carriage and public accommodations. That leads to this bone-chilling declaration:

Internet platforms of course have their own First Amendment interests, but regulations that might affect speech are valid if they would have been permissible at the time of the founding. See United States v. Stevens, 559 U. S. 460, 468 (2010). The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny—especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 684 (1994) (O’Connor, J., concurring in part and dissenting in part); PruneYard Shopping Center v. Robins, 447 U. S. 74, 88 (1980). There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.

[Freeze frame and record scratch...] What did he just say?

First, notice how far Justice Thomas has strayed from the case before him. Somehow he’s talking about common carriage and public accommodations when neither doctrine had anything to do with Trump’s management of his Twitter account.

Second, did Justice Thomas just favorably cite Pruneyard? Most “conservatives” view Pruneyard skeptically because of its dramatic incursion into private property ownership. It’s also on the wane as precedent. Courts have been reluctant to extend it to new facts. The Pruneyard decision may be a low-water mark for private property ownership rights, not the foundation of expanded censorship. (There is also the standard Internet exceptionalism problem with applying an offline analogy like physical-space shopping malls to online media venues).

Third, he is about to make a “fair argument” that “some digital platforms are sufficiently akin to common carriers or places of accommodation.” OK, but are there any counterarguments to that “fair” argument? Normally an opposing litigant would be aggressively telling its side of the story, and other Supreme Court justices would be pointing out the weaknesses in Justice Thomas’ “fair” arguments. Without these tempering forces, Justice Thomas is engaging in personal advocacy, not judicial analysis.

Regarding common carriers, Justice Thomas claims:

In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another…unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public.

It should not matter how an editorial publication sources the content it publishes. I remember Zagat, which tried to faithfully mirror the opinions of ordinary restaurant consumers. Did “distributing the speech of the broader public” make Zagat a common carrier? Of course not, because Zagat layered substantial editorial value on top of the consumer comments. But so does Twitter, which enforces its house rules and performs many crucial curatorial functions. Justice Thomas ignores those value-added editorial functions.

Justice Thomas then links common carriage to network effects:

The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size….The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry….

It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.

The companies Justice Thomas disparages would hotly contest his assessment. But they weren’t in his courtroom to explain themselves.

More generally, normally common carriage redresses natural monopolies, where it would be socially wasteful to build duplicative infrastructure. Assuming Facebook and Google in fact benefit from network effects, they still lack that key attribute of natural monopolists. In particular, competitors can and will successfully compete by providing non-identical orthogonal solutions.

Justice Thomas continues smearing non-litigants:

Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet—and users rarely do—Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Grind, Schechner, McMillan, & West, How Google Interferes With Its Search Algorithms and Changes Your Results, Wall Street Journal, Nov. 15, 2019. Facebook and Twitter can greatly narrow a person’s information flow through similar means. And, as the distributor of the clear majority of e-books and about half of all physical books, Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.

Is Justice Thomas suggesting all of these services–including Amazon’s book retailing–should be treated like common carriers? Where does that stop?

Also, media industry consolidation is ubiquitous in every media niche. For example, there are 3 major record labels, and Disney has eaten a huge chunk of the movie business. Does that make them common carriers? In the 1970s and 1980s, there was a single daily newspaper in each metro area. Should they have been deemed common carriers because of that? Recall Florida tried to do that in Miami Herald v. Tornillo (though it didn’t use the term “common carrier”). The Supreme Court held that the Miami Herald newspaper’s local market dominance did not reduce the newspaper’s constitutional protection.

With respect to public accommodations, Justice Thomas says “a company ordinarily is a place of public accommodation if it provides ‘lodging, food, entertainment, or other services to the public . . . in general.’ Twitter and other digital platforms bear resemblance to that definition.” Every business will bear some “resemblance” to that definition because they offer goods or services to their customers, but not every business is a place of public accommodation. Justice Thomas closes the thought by saying “no party has identified any public accommodation restriction that applies here.” That’s because IT WASN’T RELEVANT TO THE CASE.

Justice Thomas cheerleads the #MAGA legislators around the country working on censorial bills:

The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms. “[I]t stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of” digital platforms. Turner, 512 U. S., at 684 (opinion of O’Connor, J.). That is especially true because the space constraints on digital platforms are practically nonexistent (unlike on cable companies), so a regulation restricting a digital platform’s right to exclude might not appreciably impede the platform from speaking.

Justice Thomas somehow overlooked Reno v. ACLU (1997), which came out after Turner and Denver Area. The Supreme Court said that, unlike broadcasting and telecom, there was no basis for qualifying the First Amendment scrutiny applied to Internet content regulations. This is 100% responsive to his invocation of O’Connor’s language from Turner.

Justice Thomas then says “plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.” Not this again. It’s a true statement with respect to “government threats,” but general censorial exhortations by government officials aren’t “threats.” In a footnote, he adds:

Threats directed at digital platforms can be especially problematic in the light of 47 U. S. C. §230, which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content. Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 592 U. S. ___, ___–___ (2020) (THOMAS, J., statement respecting denial of certiorari) (slip op., at 7–8). This immunity eliminates the biggest deterrent—a private lawsuit—against caving to an unconstitutional government threat.

Wait, who is the villain in that story? My vote: The government making unconstitutional threats. Section 230 doesn’t prevent lawsuits directly against the government for issuing these threats. Nevertheless, Justice Thomas apparently thinks that Internet services, receiving unconstitutional demands from government officials, should be sued by individual users for honoring those demands. Yet, an Internet service’s content removal in response to a government threat usually would be considered a “good faith” removal and thus satisfy the statutory requirements of Section 230(c)(2), so I don’t understand why Justice Thomas thinks his Enigma statement is relevant. And if Section 230 didn’t protect the Internet service’s removal, is Justice Thomas saying that the Internet services should be compelled to carry potentially illegal content even if the government executes its threat? Here’s a better idea: we should all work together to stop the government from issuing unconstitutional threats. And the first government threat I think we should stop? I nominate Justice Thomas’ threat to impose must-carry obligations.

Justice Thomas, citing Prof. Volokh, speculates that maybe Section 230 is itself unconstitutional:

some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship

As I’ve said before, the phrase “private censorship” is an oxymoron. Only governments censor. Private entities exercise editorial control.

More generally, I do not see how Section 230(c)(1) is unconstitutional. It’s a speech-enhancing statute that supplements the First Amendment. Section 230(c)(2) is more colorable because it does make distinctions between different content categories. However, so long as courts read the “otherwise objectionable” exclusion broadly, that phrase basically applies to all content equally. Note that various Section 230(c)(2) reforms propose to remove or modify the “otherwise objectionable” language, and those changes could create a constitutional problem where none currently exists.

Justice Thomas says the threats he’s talking about have nothing to do with the case at hand:

But no threat is alleged here…no party has sued Twitter. The question facing the courts below involved only whether a government actor violated the First Amendment by blocking another Twitter user.

I agree. So why is Justice Thomas discussing any of this?

Justice Thomas’ statement concludes:

The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. 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.

I strongly disagree about the MOST “glaring concern” here. Twitter lacks the power to order drone killings, separate parents from their children at the border, put a knee on the neck of a suspect for 9 minutes, incarcerate people, impose taxes, garnish people’s wages, or engage in the thousands of other ways that governments can deprive people of their assets, liberty, or life. Compared to the government’s vast power to squelch speech, the power of the “dominant digital platforms” seems puny. Justice Thomas betrays his extraordinary degree of privilege. Due to that privilege, he doesn’t recognize how the truly glaring concern is that the government, fueled by his words, will use its “dominance” to “smother” far more speech than any Internet service ever could.

Implications

I hope Justice Thomas’ colleagues do not share his views and this statement is just idle musings. But even if the statement doesn’t lead to changes at the Supreme Court, it will nevertheless contribute to three unfortunate dynamics.

First, plaintiffs will improperly cite the statement as if it is binding law (which they did with his prior statement: 1, 2). They will especially like the discussion about government threats.

Second, plaintiffs will appeal more censorial cases to the Supreme Court, knowing that Justice Thomas is a reliable vote to grant the cert petition and vote in their favor.

Third, state legislators will view this opinion as permission to pursue unconstitutional must-carry obligations. There are so many proposals percolating in the state legislatures right now, and odds are good that at least one will get enacted and the battle will shift to the court challenges of those laws. The future of the Internet rests on those coming court battles, and I feel less secure about the Internet’s fate knowing that Justice Thomas is one of the final 9 votes.

Finally, remember that Trump’s Twitter account was government speech. The thrust of Justice Thomas’ statement would require Twitter to carry government speech it doesn’t want to carry. That isn’t garden-variety censorship. Justice Thomas seemingly wants private media operations to become government mouthpieces. Forcing media outlets to distribute government propaganda is a hallmark of repressive and autocratic countries. I don’t know what it means to be a “conservative,” but I know it shouldn’t include that.

BONUS: Justice Thomas isn’t trying to hide his antipathy towards Google. See this passage from his dissent in Google v. Oracle, No. 18–956 (U.S. Sup. Ct. April 5, 2021):

If the majority is going to speculate about what Oracle might do, it at least should consider what Google has done. The majority expresses concern that Oracle might abuse its copyright protection (on outdated Android versions) and “‘attempt to monopolize the market.’” Ante, at 34–35. But it is Google that recently was fined a record $5 billion for abusing Android to violate antitrust laws. Case AT.40099, Google Android, July 18, 2018 (Eur. Comm’n-Competition); European Comm’n Press Release, Commission Fines Google €4.34 Billion for Illegal Practices Regarding Android Mobile Devices to Strengthen Dominance of Google’s Search Engine, July 18, 2018. Google controls the most widely used mobile operating system in the world. And if companies may now freely copy libraries of declaring code whenever it is more convenient than writing their own, others will likely hesitate to spend the resources Oracle did to create intuitive, well-organized libraries that attract programmers and could compete with Android. If the majority is worried about monopolization, it ought to consider whether Google is the greater threat.

Originally posted to Eric Goldman's Technology & Marketing Law Blog.

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Filed Under: 1st amendment, clarence thomas, content moderation, free speech, section 230


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  • icon
    Samuel Abram (profile), 14 Apr 2021 @ 10:52am

    Thomas on §230 violating the First Amendment

    some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship

    If I'm not Mistaken, §230 was the only section of the CDA to survive Reno v. ACLU, and the ruling was unanimous, meaning that Thomas agreed that it was constitutional. Does this mean that Thomas regrets his decision 25 years ago, or is he playing a more cynical game?

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 14 Apr 2021 @ 11:50am

      Re: Thomas on §230 violating the First Amendment

      Reno v ACLU wasn't quite unanimous; O'Connor and Rehnquist concurred in part but dissented in part.

      But your main point -- that Thomas concurred with the majority -- is correct.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 15 Apr 2021 @ 1:20am

      Re: Thomas on §230 violating the First Amendment

      "Does this mean that Thomas regrets his decision 25 years ago, or is he playing a more cynical game?"

      I'm guessing it means Judge Thomas is trying to appease his zealous MAGA-hat-wearing wife and her GOP bingo circle by making public "speculation" where he only pawns his public rather than his courtroom credibility.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 14 Apr 2021 @ 10:58am

    Sez the corporatist who wants total control for "platforms".

    Your status quo alternative does not serve The Public, ONLY the corporations, you fascists.

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 14 Apr 2021 @ 10:59am

      Re: Sez the corporatist who wants total control for "platforms".

      [Free-speech-hating Woody projects facts not in evidence]

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 14 Apr 2021 @ 11:08am

      Re: Sez the corporatist who wants total control for "platfo

      CDA Section 230 is MERE statute. It's a GRANT of a privilege. It can be removed at any time. It benefits only corporations: other countries don't have it.

      ALL FACTS so evident that don't need "citation", which is the now common cheap way the fanboys try to make look as if read and answered.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 14 Apr 2021 @ 11:18am

        The overwhelming majority of Mastodon instances are owned and operated by persons/individuals (which of those do you SovCits use to describe human beings, again?). I mean, I literally can’t think of a single major Masto instance owned by a corporation.

        230 protects all interactive web services regardless of who owns and operates them. That includes services owned/operated by persons/individuals and services owned/operated by corporations.

        Revoke 230 and Mastodon instance owners will lose their 230 protections. Most of those instances will likely shut down immediately. For what reason should that happen, other than you and you alone wanting to feel a feeling of godlike righteousness at having fucked over corporations regardless of the collateral damage of your holy war?

        reply to this | link to this | view in chronology ]

      • identicon
        Baron von Robber, 14 Apr 2021 @ 11:37am

        Re: Re: Sez the corporatist who wants total control for "pl

        You can't tell the difference between a switch/router and a server?!?
        Sad....soooooo sad.

        reply to this | link to this | view in chronology ]

      • identicon
        Rocky, 14 Apr 2021 @ 1:27pm

        Re: Re: Sez the corporatist who wants total control for "pl

        CDA Section 230 is MERE statute. It's a GRANT of a privilege. It can be removed at any time. It benefits only corporations: other countries don't have it.

        1. Other countries have their own laws that handle who's liable for what. Or are you that inbred that you think other countries doesn't have comparable laws?

        2. If 230 was removed, all the assholes would be silenced overnight. That includes you, since no site-owner would want to be liable for your shit-posting.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Apr 2021 @ 9:31pm

          Re: Re: Re: Sez the corporatist who wants total control for &

          Other countries have their own laws that handle who's liable for what. […] you think other countries doesn't have comparable laws?

          CDA section 230 exists to overturn the case law from Stratton Oakmont, Inc. v. Prodigy Services Co.. Countries whose courts didn't fuck up so badly can often rely on common sense, rather than specific laws. (After all, why would a company be liable for the actions of a third party?)

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Apr 2021 @ 5:33pm

        Re: Re:

        It benefits only corporations: other countries don't have it.

        I know that you've been called unimaginative, but that's hardly a reason to start reusing Jhon Smith's talking points.

        reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 14 Apr 2021 @ 8:02pm

        Re: Re: Sez the corporatist who wants total control for &quo

        ALL FACTS so evident that don't need "citation",

        Only under prodigious use of hallucinogens, as none such facts exist back here in the real world.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 15 Apr 2021 @ 1:32am

        Re: Re: Sez the corporatist who wants total control for "pl

        "It can be removed at any time. It benefits only corporations: other countries don't have it."

        Because the US is alone in that it requires a 230 protection to guard against litigatory abuse. Other countries have third-party immunity writ large into their basic telecommunications acts or derived directly from their national charters.

        We've all informed you of this before and it's pretty damn easy to verify. Yey as usual you ignore facts and present manifest falsehood as the basis for your talking point.

        Seriously, Baghdad Bob. Seek help. Or better yet, learn to read.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Apr 2021 @ 11:27am

      Re: Sez the corporatist who wants total control for "platforms".

      Two questions

      1) Why would size determine whether a social media site is a common carrier?

      2) If a site is not allowed to moderate as it pleases, how to topic special interest sites, such a a cat lovers site, prevent themselves being overrun by unwanted political speech?

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        William Null, 14 Apr 2021 @ 7:13pm

        Re: Re: Sez the corporatist who wants total control for "platfor

        1. Over a million registered users would be a fair figure
        2. You can create sections for politics in your forum that only people who are interested in reading/participating in would visit. Key thing is to not remove any speech that isn't illegal or contains unwanted advertisements (a.k.a. spam) or ban users for it. Moving it to a different section of a site is completely fair.

        reply to this | link to this | view in chronology ]

        • icon
          Toom1275 (profile), 14 Apr 2021 @ 8:04pm

          Re: Re: Re: Sez the corporatist who wants total control for &quo

          Translations:

          1: arbitrary bullshit

          2: compelled speech

          reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 14 Apr 2021 @ 9:26pm

          Re: Re: Re: Sez the corporatist who wants total control for "pla

          1) Not only is that an arbitrary and absurdly low number but congrats, you just set a hard limit on platform size and success for any US-based platform because no sane company will allow their user base to hit that number, meaning that the platforms that are beyond that point are locked in and will never need worry about US-based competition.

          2) As Toom noted that's blatant compelled speech and would force companies to spend time and resources hosting and sorting content they don't want to so long as it is legal, from rampant bigotry to nurgle cultists ranting about how vaccines will kill everyone, political discussions about what groups really deserve to be considered worthy of voting to charming back and forths by people posting the most disgusting but legal pictures they can find just to shock people, all of which platforms would have to allow.

          As I've noted in the past if you want a platform that allows you to wallow in digital sewage they already exist, go use them rather than trying to force the platforms that people actually want to use because they don't allow that sort of content into doing so.

          reply to this | link to this | view in chronology ]

          • icon
            Toom1275 (profile), 15 Apr 2021 @ 1:28am

            Re: Re: Re: Re: Sez the corporatist who wants total control for

            Woody's Number Two is somehow even worse than the usual compelled speech, by demanding hosts not just lose control over their own speech and property, but be forced to create and manage new special forums explicitly for the unwanted unconstitutional compelled speech.

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Apr 2021 @ 4:24am

          Re: Re: Re: Sez the corporatist who wants total control for "pla

          Wold bigots like you stay in a politics section, or would they roam the site looking for people to attack?
          Also, why should a site spend money on processors, storage and bandwidth for content that they are not interested in?

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 15 Apr 2021 @ 9:25am

            Wo[u]ld bigots like you stay in a politics section, or would they roam the site looking for people to attack?

            The history of 4chan’s /pol/ says “roaming the site” would be the inevitable outcome.

            reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 15 Apr 2021 @ 2:03am

        Re: Re: Sez the corporatist who wants total control for "platfor

        1) It shouldn't. The only thing which should determine common carrier status is whether the platform is considered a natural monopoly. Cases like "being too popular" isn't a valid factor.

        2) It can't. The whole point of trying to overturn 230 is that it removes public debate from the internet completely, turning the open forum into closed invitation-only echo chambers.

        Everyone who tries to advocate turning private platforms into public sector is, deliberately or not, advocating the state seizing control over the means of production.
        Knowing or not they're carrying water for the newest mutation of marxism - also known as the neo-nazis and the alt-right who are miffed they bar owner keeps throwing them out because the other patrons find their heiling to be revolting.

        reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 14 Apr 2021 @ 11:56am

    "There is a fair argument that some digital platforms are sufficiently akin to common carriers"

    Sure..
    First, you conflate targeted, specific end user services with ISPs by calling them platforms, then you can easily see how those websites are really generic "platforms" that only act as common carriers and shouldn't be prejudicing the service they deliver based on what that target audience actually wants from their service

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Apr 2021 @ 5:15pm

      Re:

      The only possible case i see for the common carrier angle is in messaging services, whether owned by a larger platform or the messaging product is pretty much what the company does. Generic "groups" or "rooms" or whatever, which are more public, make any argument for common carriership even more dubious than for interpersonal messaging-by-choice services.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 15 Apr 2021 @ 2:05am

        Re: Re:

        "The only possible case i see for the common carrier angle is in messaging services..."

        Not even there, really, and in the few cases where messenger services can be considered natural monopolies the best solution is to implement mandatory interoperability to make sure alternative companies can still build meta-clients bundling streams from multiple sources.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Apr 2021 @ 12:38pm

    This seems to me to be typical of the way things operate, are done, in the usa. Thise who sre dupposed to have more intelligence and sense than the majority of us, are put into the position of making decisions that affect just about everyone. Unfortunately, they dont seem to have the common sense and knowledge needed and therefore dont understand the subjects they are making decisions on. That wouldn't be so bad if only they were affected but almost everyone gets caught up and that isn't fair or just.
    What this shows, more than anything is that age doesn't necessarily give the ability to make correct, knowledgeable and unbiased decisions. To do that, it isn't just extensive knowledge of the law that's required, it's an extended knowledge of the consequences that's also a 'must have', before things get sent further down the pan than they had already gone!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Apr 2021 @ 12:40pm

    Justice Thomas somehow overlooked Reno v. ACLU (1997), which came out after Turner and Denver Area. The Supreme Court said that, unlike broadcasting and telecom, there was no basis for qualifying the First Amendment scrutiny applied to Internet content regulations.

    Have you seen the rationale for it? It was that such qualifications are unnecessary because, unlike broadcasting and telecom, the internet is far too small in its scope and relevancy to people's lives for such regulations to be needed.

    This was questionable already in 1997, but admittedly it made a certain degree of sense back then, particularly if you happened to be a person who doesn't understand Moore's Law. Today, that rationale is simply absurd and the decision predicated upon it really ought to be revisited.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 14 Apr 2021 @ 1:07pm

    Well that's reassuring

    First you had random scummy lawyers and those employing them abusing the court system as cheap platforms for performative lawsuits to play to the gullible and now a gorram Supreme Court Justice is wasting time doing the same, rambling on and on about his contempt for the first amendment despite it not being relevant to the case at hand.

    reply to this | link to this | view in chronology ]

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    identicon
    William Null, 14 Apr 2021 @ 7:05pm

    Wow.

    So much hate against a black guy for having an opinion, in an article written by someone who more likely than not has the white privilege.

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 14 Apr 2021 @ 8:05pm

      Re: Wow.

      [Projects facts not in evidence]

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 14 Apr 2021 @ 9:05pm

      I'd say nice try but even faceplants involve more effort

      That was adorable, ignoring all the criticism and commentary by trying to play the race card.

      reply to this | link to this | view in chronology ]

      • identicon
        Rocky, 15 Apr 2021 @ 3:44am

        Re: I'd say nice try but even faceplants involve more effort

        You think he'll whip out the "think of the children"-card next?

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 16 Apr 2021 @ 4:33am

          Re: Re: I'd say nice try but even faceplants involve more effort

          Or maybe he'll go the distance and grab his old argument about how we're all "aspies"?

          I swear, there just isn't a bottom line to how low Baghdad Bob can go in his quest to never, ever produce an argument based on factual reality.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Apr 2021 @ 6:46am

    Justice Thomas seems to be trying to tackle an issue out of spite. There's problems with the concentration of capital with respect to ISPs and Social Media websites but there's law for that, it's called antitrust law. Antitrust law might need some reforms to include limits on vertical integration as we see with Verizon and AT&T but that's irrelevant to the discussion (just noting it here). What's important is that some conservative justices who now an outsized voice in a majority conservative SCOTUS which will now be used to affect decisions down stream, none of which would make any sense legally or even in common reasoning. The idea that a website due to its high traffic being an illegal monopoly or some how like a natural monopoly is absurd. There's no real physical limit on the number or kind of website you want to make. It's more about getting people to visit and use it (a problem of marketing, really). So making an arbitrary distinction like you mention Goldman, it would not only affect businesses outside of the relevant industries but it would literally make everyone from some folks running a knitting web forum and/or blog to some nerds on a Minecraft server have to let all comers say and do as they please. All for what? Because a few big social media sites caught the ire of politicians and certain out-of-touch SCOTUS justices. Seriously, this stuff is utter nonsense.

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 15 Apr 2021 @ 8:32am

    Communications networks

    Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another…

    This is isn't even correct. The social media networks and other web sites host information. Telecoms (ISPs) carry the information from one to another. If Thomas wants to regulate ISPs as common carriers, I would be totally on board with that.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 15 Apr 2021 @ 1:57pm

      It's almost as though the arguments aren't in good faith

      Funnily enough for all the wailing and gnashing of teeth about how tech platforms are abusive monopolies and need to be reigned in the silence is positively deafening when it comes to ISP's and maybe imposing some regulations on them of looking at the monopoly powers they enjoy...

      reply to this | link to this | view in chronology ]

  • icon
    Barry Winters (profile), 15 Apr 2021 @ 11:43am

    Lifetime Appointments BAD

    Outstanding analysis of Thomas' demented views on technology and social media. His contorted view of the world is too frequently ignored because folks don't want to be accused of playing the race card. Reality is the man is out of touch with the current world and seems increasingly confused as to what surrounds him. He should resign and go home.

    reply to this | link to this | view in chronology ]

    • icon
      fairuse (profile), 15 Apr 2021 @ 2:07pm

      Re: Lifetime Appointments BAD

      Lifetime Appointment is not bad in my opinion. What is bad is Thomas making statements that are out of touch with reality. The question is why are the other Justices allowing this?

      Maybe there is a retire him for cause? I have no idea how that would work - study time.

      I'm sad the man I respect has started cutting out paper dolls.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 15 Apr 2021 @ 2:14pm

        Re: Re: Lifetime Appointments BAD

        The question is why are the other Justices allowing this?

        Because they have no (formal) means of stopping him. We of course don't know what is happening behind the scenes.

        Maybe there is a retire him for cause?

        He could be impeached by Congress. Don't hold your breath.

        reply to this | link to this | view in chronology ]

  • identicon
    Bob Wyman, 15 Apr 2021 @ 12:13pm

    If Moderation were optional, would Thomas' concerns remain?

    Could Twitter, Facebook, etc. moot Thomas' concerns by simply allowing their users to opt-out of content moderation and thus accept raw feeds? If moderation were presented as an optional service, chosen by users, then it would be very difficult to argue against it. If moderation is chosen, then it would be individual users, not the platform, who were responsible for causing moderation to occur.

    (Note: I think few users would, in fact, opt-out of moderation. If anything, users might argue for a range of moderation algorithms or options from which to choose.)

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 15 Apr 2021 @ 11:52pm

      'This is what it looks like unmoderated? Moderate, moderate!'

      An argument could be made that users already have a 'no moderation' option in the form of various platforms with varying levels of moderation, and most people have made clear that they do in fact want moderation as evidenced by which platforms they choose and which they don't.

      As for your idea I'm not sure how viable it would be as the platforms would still be moderating but they'd also have to preserve an unmoderated version, essentially creating two copies of the site, though it would be entertaining watching people get what they were asking for only to find out that it was not what they actually wanted.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 17 Apr 2021 @ 10:18pm

    Leave it to Techdirt...

    Justice Thomas' anti-censorship opinion is labeled "pro-censorship".

    But you Leftists keep telling us "no, '1984' isn't coming true... stop saying that, fascist!"

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 17 Apr 2021 @ 10:19pm

    The fucking irony of (((Goldman))) telling us "there's no such thing as Big Brother."

    Ha!

    reply to this | link to this | view in chronology ]


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