Supreme Court Justice Clarence Thomas, in an opinion published today, instigated a dangerous ignorance about digital matters. In an attempt to explain the legal difficulties of social media platforms, especially those arising from Trump’s Twitter ban, he gives an ominous notice, bordering on bizarre, arguing why such companies need their First Amendment rights Can.
There are several points at which Thomas deliberately misunderstood or misunderstood the issues.
The first is in the characterization of Trump’s use of Twitter. You may recall that many people sued after they were blocked by Trump, alleging that their platform was used to create a “public platform” in a legal sense, meaning that it was used for political reasons It was illegal to exclude anyone. (The case, as it happens, was presented to Moot after its appeal and was dismissed by the court, except for Thomas’s temporary soap box.)
“But Mr. Trump, it turned out, only had limited control of the account; Twitter has permanently removed the account from the platform, ”Thomas writes. “[I]T seems rather strange to say something, it is a government forum when a private company has unrestricted authority to do away with it. “
Is this? Does this sound strange? Because a few paragraphs later, he uses the example of a government agency to hold a public hearing using a conference room in a hotel. They certainly cannot kill people for expressing their political opinions, because the room is one Actually Public forum. But if someone is loud and disruptive, they can ask the hotel security to remove the person, because the room is Legally A privately owned place.
Yet a clear third example and clearly most relevant to the situation at hand, has been omitted. What if it is the representatives of the government who are loud and disruptive, to the point where the hotel must choose whether to remove them?
It says something that this scenario, therefore remarkably close to a metaphor for what has actually happened. Perhaps it is in an unsteadily “odd” situation and the actors are also a light clear, according to Thomas’ other arguments he is not here for clarity, but for a fight over free speech in the mud in front of a partisan knife fight Is for inserting.
At my best “I’m not saying, I’m just saying“Vowel, Thomas presents his argument as to why, if the problem is that these platforms have too much power over free speech, historically there must be some legal option to simply limit that power.
Thomas first argues, and worst of all, that platforms such as Facebook and Google may refer to “common carriers”, a term that goes back centuries to the actual carrier of cargo, but which is now a common legal concept that would Refers to services that act as simple delivery – “obliged to serve all customers equally without discrimination.” A telephone company is the most common example, in which it cannot choose what connections it makes, nor what those connections interact – it carries an electric signal from one phone to another.
But as he notes at the outset of his comment, “it is rarely straightforward to apply old principles to new digital platforms.” And Thomas’s way of doing it is very simple.
“However, digital rather than physical, they are down to the communications network, and they carry information from one user to another,” he says, and Google equates companies with telephone laying with companies such as “Laying Information” The infrastructure that can be controlled in the same way. “
Now, this is definitely wrong. It is wrong in so many ways that it is difficult to know where to start and when to stop.
The idea that companies like Facebook and Google are on par with telephone lines is such a reach that it almost seems like a joke. These are the companies that have built the entire business empire by adding massive amounts of storage, processing, analysis and other services on top of the element of pure communication. One can easily suggest that because the computer is just a simple piece of hardware that moves data from there, that Apple is also a common carrier. This is not really a logical leap yet!
There is no real need to get this opinion wrong for technical and legal reasons, however, because these grounds have been covered so extensively over the years, especially by the FCC – which the Supreme Court postponed it as an expert agency The matter is given. If Facebook was a common carrier (or telecommunications service), it falls under the jurisdiction of the FCC – but it does not, because it does not, and in fact, no one thinks it. This has been supported by many FCCs and administrations, and deferral itself is a Supreme Court precedent that has become the doctrine.
In fact, and this is really the cherry on top, in a truly silly legal opinion a few years ago the new Justice Kavanuagh argued so far in the other direction that it went completely wrong! It was Kavanaugh’s opinion that the bar for qualifying as a common carrier was actually so high that even broadband providers don’t qualify for it (it was all in the service of reducing net neutrality, a saga that we soon Are in danger of starting again). As his era colleague Judge Srinivasan explained to him at the time, this approach is also embarrassing.
Looking at these two opinions, in the two current conservative Supreme Court justices, you may find the arguments oddly, yet they are inaccurate after common fashion.
Kavanaugh claims that broadband providers, the simplest form of digital common carriers, are actually providing all kinds of sophisticated services over and above their functionality in the form of pipes (they are not). Thomas claims that companies that actually provide all kinds of sophisticated services are nothing more than pipes.
Simply stated, these people have no connection to the facts, but have chosen the definition that best suits their political objectives: for Kavanugh, a Democrat for stronger net neutrality rules Thwarting the led push; For Thomas, claiming control over social media companies is perceived as an anti-conservative bias.
The case used by Thomas for his sounding board on these subjects was correctly muted – Trump is no longer president and the account no longer exists – but he makes it clear that he regrets it.
“As Twitter has clarified, the right to cut speech is most powerful in the hands of private digital platforms.” “It is the extent to which the power matters for the purposes of the First Amendment and the extent to which that power can be legally amended can raise interesting and important questions. This petition, unfortunately, we have to face them Does not give any opportunity.
Between the common carrier argument and the interrogation of Section 230 as (in this article), Thomas’ fictitious digital platform for restricting First Amendment rights, as well as legalizing those (largely aside) Many break the seal on the legal path (political spectrum) who claim a complaint along these lines.[[
This is not to say that social media and technology are not worth investigating on any number of fronts – they exist in a dangerous global vacuum of regulatory powers, and hardly anyone would suggest that they are fully responsible with this freedom . But Thomas and Kavanugh’s argument argues blasphemous partisan sophistication. This endorsement of the Thomas zodiacs accomplishes nothing legally, but would provide valuable fuel for the bitter fire of controversy – though they hardly needed it.