Justice Thomas's Misguided Concurrence on Platform Regulation

The courtroom of the U.S. Supreme Court. (John Marino, https://tinyurl.com/3f6wnwub; CC BY 2.0, https://creativecommons.org/licenses/by/2.0/) After months of delay, on April 5 the Supreme Court finally granted certiorari and ruled in Biden v. Knight —the case, renamed after President Biden took office, concerning whether the First Amendment prevented then-President Trump from blocking his critics on Twitter. The justices vacated the ruling by the U.S. Court of Appeals for the Second Circuit and instructed the lower court to dismiss the case as moot.  That could have been that. But Justice Clarence Thomas issued a concurrence in the case that could have implications well beyond the Twitter accounts of politicians. The justice’s speculations on the possibilities for regulating social media platforms are already changing the tone of the debate on the political right, where commentators have pointed to unsubstantiated claims of political bias by social media platforms in order to push for greater regulation. Thomas’s concurrence is just a nonbinding statement, issued without briefing, in which one of the court’s nine justices speculates about what legal theories might justify curtailing social media websites’ First Amendment rights—but conservatives are celebrating it as a “roadmap” for “reining in the social media giants.” It is no such thing. Thomas raises three questions about the legal status of social media websites. First, are they de facto state actors subject to First Amendment restrictions? Second, might they be compelled, as common carriers, to carry speech against their will? And third, might they be barred, as public accomodations, from “discriminating” against certain content or viewpoints? In an effort to promote the idea that the sites’ right to exclude speech might be permissibly curtailed, Thomas treats these questions as though they are unexplored, unsettled, even wide open. As we will explain, however, the answer to all three questions is no. “Applying old doctrines to new digital platforms is,” Thomas submits, “rarely straightforward.” Yet in the case before him, it really was. When the government opens a space to free expression, it creates a “designated public forum” in which it may not discriminate based on content or viewpoint. At issue in the case was whether Trump, by using his Twitter account for government business, leaving the account open to replies, and then blocking certain users, had discriminated among viewpoints in a designated public forum. The Second Circuit reached the conclusion that Trump had done so and that the First Amendment barred him from blocking the individual plaintiffs in the case. While the government’s petition for certiorari was pending, the parties agreed that the case was moot—though they disagreed about why. The government argued that the mootness arose from Trump’s ceasing to be president. The respondents contended that it arose when Twitter suspended Trump’s account following the Jan. 6 riot.  In Thomas’s view, the suspension of Trump’s account informs the merits of the case. “It seems rather odd,” he proposes, “to say that something is a government forum when a private company has unrestricted authority to do away with it.” But it’s actually not odd at all. Suppose a mayor regularly offered commentary on his administration at events, open to the general public, held at a large conference room at a local Hilton. The room would constitute a designated public forum, yet Hilton, a “private company,” would still retain “unrestricted authority to do away” with that forum. If the mayor used the room to incite a riot, for example, Hilton would have every right to kick him out. Thomas seems to think that Twitter is not like the Hilton because “digital platforms” are “highly concentrated” and have “enormous control over speech.” Both propositions are dubious. On the one hand, a mayor who got himself booted by Hilton, Marriott and Hyatt hotels might find himself quickly running out of large conference rooms in his city. On the other, Trump can easily speak, and attract widespread attention for his speech, from an alternative social media website , a new network of his own, or even his own personal website .  The key question in the case at hand was whether the “interactive space” in Trump’s Twitter account—where an unblocked user can respond to his tweets—was a designated public forum. As the Second Circuit explained, the “space” clearly met that standard: it was “intentionally opened for public discussion when [Trump], upon assuming office, repeatedly used [his account] as an official vehicle for governance and made its interactive features accessible to the public without limitation.” But Thomas focuses on an entirely distinct question in discussing Twitter and public-forum doctrine: whether the whole of Twitter is a public forum. That question turns not on any action Trump took in regard to his account, but on the very different issue of whether Twitter itself is a de facto state actor. Thomas acknowledges that because Twitter had “unbridled control of [Trump’s] account,” the First Amendment restrictions that restrain the government, in the operation of a public forum, “may not” apply to Twitter. In fact, in Manhattan Community Access Corp. v. Halleck —a decision Thomas joined—the Supreme Court confirmed that only the equivalent of a state actor can be deemed to operate a public forum, and that a private entity that “opens its property for speech by others is not transformed by that fact alone into a state actor.”  As Halleck explains, “a private entity can qualify as a state actor” in only “a few limited circumstances.” One is when “the private entity performs a traditional, exclusive public function”—and there is nothing either “traditionally” or “exclusively” governmental about running a social media website. Another circumstance is “when the government compels the private entity to take a particular action.” Thomas speculates that “plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.” He acknowledges, however, that “no threat is alleged here,” and that it’s “unclear” what sort of government threat could turn the likes of Twitter into a state actor. Thomas cites cases holding that the threat must be so coercive that the private party’s action is “not voluntary” and is in effect “that of the State.”  The public forum doctrine is the sole topic at issue in the case at hand. The doctrine, however, is not even the primary subject of Thomas’s concurrence. Thomas devotes most of his attention to exploring two legal theories that might allow greater government control over content moderation. The first is common carriage. Riffing on a single academic article by Adam Candeub, Thomas suggests that digital media might be like toll bridges, railroads or telephone networks—which must “offer service indiscriminately and on general terms.” By contrast, newspapers actively curate content. “The presentation of an edited compilation of speech generated by other persons is a staple of most newspapers’ opinion pages,” declared the Supreme Court in Miami Herald Publishing Co. v. Tornillo . Thus, newspapers cannot be compelled to carry speech they find objectionable. Their editorial judgments fall “squarely within the core of First Amendment security,” wrote the Miami Herald court. The same goes for social media, which actively exercise editorial judgment in moderating content—and thus deserve the same constitutional protections as newspapers. As Justice Antonin Scalia once declared : “[T]he basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communications appears.”  On multiple levels, social media sites are more like newspapers than any of the examples Thomas cites. Unlike newspapers or social media, railroads and telephone networks hold themselves out as serving everyone equally, without editorial intervention. In 1974, the Federal Communications Co
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