Clarence Thomas Thinks Free Speech Should Be Regulated

[Edge-]

https://www.cnbc.com/amp/2021/04/05/...utilities.html

Justice Clarence Thomas suggested Monday that tech platforms could be regulated like utilities in what would be a major shift for services such as Facebook, Google and Twitter.

Thomas, one of the Supreme Court's most conservative voices, made his point in a concurrence submitted alongside a decision to vacate a lower court's ruling involving former President Donald Trump's Twitter account.

"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," Thomas wrote.

Regulating online platforms like utilities would require fundamental changes to how tech platforms operate. Depending on the specific contours of such regulation, social media sites could be forced to alter or do away with many of the moderation standards they use to keep harassment, hate speech and nudity off their platforms. That's the opposite of what many Democrats have been fighting for, which is more liability for platforms that host certain types of objectionable or illegal content.

Twitter and Trump
The decision erased a federal appeals court ruling that Trump had violated the Constitution by blocking his critics from his Twitter account. The lower court had said Trump's move effectively excluded citizens from viewing a public forum, in violation of their First Amendment rights.

The Supreme Court ordered the lower court to dismiss the case as moot now that Trump is no longer president. The action prevents the federal appeals court decision from serving as precedent for future cases.

Thomas' concurrence signals the justice would be open to arguments that could require a fundamental change to how tech platforms function.

While he agreed that Trump's Twitter account did "resemble a constitutionally protected public forum" in some respects, "it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it," he said, referencing Twitter's decision to remove Trump's account from the platform following the Jan. 6 insurrection at the U.S. Capitol.

"Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter's authority, dictated in its terms of service, to remove the account 'at any time for any or no reason,'" Thomas wrote.

Thomas said the solution to the unprecedented issues presented by the tech platforms could lie "in doctrines that limit the right of a private company to exclude."

It's not the first time he's indicated openness to the idea of upending the status quo of tech regulation.

In an October filing, Thomas wrote that it "behooves" the court to determine the "correct interpretation" of Section 230, the law that protects tech platforms from being held liable for their users' posts or for how they choose to moderate and remove content. Thomas suggested the law had been too widely interpreted and that there is reason to reconsider its application.

Trump's Federal Communications Commission chair pointed to Thomas' statement in his decision to move to "clarify" the law, but that did not happen before the administration changed hands. Democrats hold a far different view on how the law should be revised, though they too are seeking changes.

Thomas' concurrence Monday was the only one submitted alongside the action, which did not include an explanation from the majority. That could be an indication that Thomas' colleagues don't share his reasoning, especially since Thomas is known for holding views that deviate from the rest of the court.

Thomas also discussed in his statement the vast reach of several large tech platforms over the flow of information and even books. He argued it doesn't necessarily matter if platforms like Amazon, Facebook and Twitter are not the only means to distribute speech, so long as their relative power to do so is unmatched.

"A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail," he wrote. "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."

He wants social media regulated as a utility. Not "the internet", which everyone wants regulated as a utility because it is, but specifically social media companies.

I'm all for more oversight over social media companies, but not for extending First Amendment protections from the government to private companies on the internet like this.

His toll bridge/train analogy is exceedingly poor as well. If you need to physically get somewhere, you need to physically get somewhere. If you need to digitally "get somewhere"...you've got a lot more options than just a lone toll bridge or train. Nobody has a right to force Facebook to host their OnlyKlans group because it's difficult to find safe spaces for racists.

Edit: Screwed up the title, should be "online free speech" >.<

[cubby]

https://www.cnbc.com/amp/2021/04/05/...utilities.html



He wants social media regulated as a utility. Not "the internet", which everyone wants regulated as a utility because it is, but specifically social media companies.

I'm all for more oversight over social media companies, but not for extending First Amendment protections from the government to private companies on the internet like this.

His toll bridge/train analogy is exceedingly poor as well. If you need to physically get somewhere, you need to physically get somewhere. If you need to digitally "get somewhere"...you've got a lot more options than just a lone toll bridge or train. Nobody has a right to force Facebook to host their OnlyKlans group because it's difficult to find safe spaces for racists.

Edit: Screwed up the title, should be "online free speech" >.<

Thomas' views on a number of right's issues are frightening. This position on internet free speech is downright terrifying. I agree with your characterization of his poor analogy. Private entities should not be forced to provide service to racist or other distasteful groups.

There is a certain amount of irony, too, given the bakery company that denied service to gay couples based on religion.

Edit: added "not" in a very important place

[Felya]

Thomas' views on a number of right's issues are frightening. This position on internet free speech is downright terrifying. I agree with your characterization of his poor analogy. Private entities should be forced to provide service to racist or other distasteful groups.

There is a certain amount of irony, too, given the bakery company that denied service to gay couples based on religion.

His wife was at the insurrection...

[cubby]

His wife was at the insurrection...

Honestly, in my personal opinion, they are both batshit crazy. Thomas shouldn't have made the bench in the first place (same reasons as Kavaugh) and he's been a blight on the Court ever since. And not because he's a conservative.

[Xeones]

It's just form for republicans they always argue for "freedom" for themselves and no rights for you. Problem is the republican idea of freedom isn't very free.

[Endus]

While he agreed that Trump's Twitter account did "resemble a constitutionally protected public forum" in some respects, "it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it," he said, referencing Twitter's decision to remove Trump's account from the platform following the Jan. 6 insurrection at the U.S. Capitol.

Yeah. And the conclusion you should draw from that is "The President should not be using Twitter as a primary means of communication with the public". Not that Twitter's rights and freedoms should be curtailed so that politicians can abuse their services without consequence. Which is what he's arguing for.

That's the problem with these arguments; they presume these companies will continue to do business while letting the government control what gets posted. They won't. They'll just stop operating in the public-access way that they are currently.

If the government wants Twitter to be a public service that you can't be banned from no matter what you say on it, the government is free to buy Twitter outright. This bullshit they're pulling here is just naked fascism.

"A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail," he wrote. "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."

This is a bullshit analogy.

There are services like Twitter and Facebook out there. They're not as big as Twitter or Facebook. And that's why people prefer the big-name services.

This is more like the rules at Disney World for visitor conduct. If you sneak in liquor and get super drunk, or try and deal drugs, or are screaming racial epithets, you're gonna get removed from the park and quite possibly banned for life. Sure, everyone wants to go to Disney. Doesn't mean you're entitled to. If you fuck around and get banned, you get to suck it up and deal; your right to free speech is not curtailed because Disney won't let you scream racial epithets at other visitors. However badly you want to go to Disney and do that doesn't matter. All that matters is that Disney is private property, and they can make the rules about stuff like that on their property.

And all Disney is "exercising substantial market power" on there, is access to Disney properties. Much like Twitter and Facebook banning you only affects your access to Twitter's and Facebook's services. Which are entirely unnecessary luxuries that you can do just fine without access to.

"Nothing is comparable" my ass.

[Machismo]

It shouldn't surprise anyone that another GOP fanatic is in favor of this. At this point, it's more of a shock when they don't share that sentiment. Jusrlook at these forums... how many Republicans feel the same way as Thomas?

[Breccia]

...he does know Twitter is a private company, right?

I'll admit, a LOT changed between the banning of Chrissy Tiegen and the banning of Donald Trump. But at the start, Twitter was still sticking with "this is the Office of the President's account". Trump had to go out of his way to break that, killiing someone to break that. So if there's a contradiction, that's Trump's fault for forcing the issue.

"You can't lock me in a cage! That's kidnapping! That's illegal!"
"Mr. Breccia, we caught you hijacking a truck filled with Ben and Jerry's Phish Food. You were found guilty and put in jail."

[tehealadin]

I think the people calling for regulation of social media companies are being very short sighted, just as I think any group is who want to start dictating what people can and cannot express (I also lol at the hypocrisy of many of the people calling for this usually are the ones who criticise social media companies for being censors) are.

Yes, it is a private company. Though I don't think they are any normal private company. Given the control a small handful of companies have over the dissemination of information and ideas, it isn't unreasonable to have concerns, and I certainly have some concerns with private companies having that sort of power. I certainly think they should be encouraged to act in the spirit of free expression, and from what I can see this is largely what does happen, I think there is a bit of a moral panic over this, especially on the right. I do think they make mistakes (the sheer volume of online content makes this inevitable), especially with algorithms, given the sheer volume of content, human oversight is impossible, and algorithms are not sophisticated enough to pick up on nuance and context (I do believe these things can matter) to be precision tools. So while I think there are legitimate concerns, I don't think the caricature often made out of Jack Dorsey gagging anyone right of Lenin is accurate or helpful.

And I also want to add that I don't think the caricature often made on the left of anyone having issue with this as simply being angry white men just wanting to scream the n word is deeply inaccurate and unhelpful (not denying these people exist, just to clarify). I am also slightly concerned that many on the left, who traditionally are wary and suspicious of too much power in private hands, and don't usually accept the argument of "its a private company", being very ok with these companies being extremely powerful, and ok with likening them to any old private company, to those who think they are, I think you are very wrong, the cultural and economic power of this small handful of companies is on a different scale from anything seen before. Though I do understand (and share) the schadenfreude of saying to right wingers "its a private company!" who were all too willing to use this as a defense for shitty corporate behaviour of companies they don't have an issue with.

Just as I have some concerns over this kind of power in private hands, the idea of the government stepping in like this is far more worrying, the potential for "unintended" consequences are massive, I feel confident that any moves on this area would blow up and blow back very quickly. To the people (who seem to be mainly on the right) wanting this sort of thing, thinking it will offer you protection, or is a way to strike at enemies in the positions of power in these companies, do you really think it won't have any blow back on you? I know this doesn't apply to all (sorry to generalise but I reckon it applies to more than not), but many of the people I hear talking about regulation of these platforms are often very vocally against regulation in so many other areas, often decrying government intervention as authoritarian, wasteful and stifling, and in the more extreme cases acts of communism. Thinking regulation is fine if it suits you, but not when it doesn't, there is an invitation here for self reflection. Why will this kind of regulation (e.g. the kind you want) be administered in a competent manner, but intervention on health care won't?

[Edge-]

Given the control a small handful of companies have over the dissemination of information and ideas, it isn't unreasonable to have concerns, and I certainly have some concerns with private companies having that sort of power.

Which is less of a "judicial" issue and more a regulatory issue. That's the realm of Congress to start stepping up anti-trust measures and limiting the size and influence of these companies to allow for actual competition.

Which, amusingly, Thomas could have pointed towards as potential relief for the issues via a Legislative solution...but he went all anti-First Amendment and because he's kinda a piece of shit reactionary.

[Endus]

I am also slightly concerned that many on the left, who traditionally are wary and suspicious of too much power in private hands, and don't usually accept the argument of "its a private company", being very ok with these companies being extremely powerful, and ok with likening them to any old private company, to those who think they are, I think you are very wrong, the cultural and economic power of this small handful of companies is on a different scale from anything seen before.

The issues with monopolization have to do with the ability to oppress and control the masses, somehow.

The thing with social media companies is that they have absolutely no control whatsoever, except what those masses allow them to have, and even then, only with regards to their own services.

If the masses turn on Facebook and it becomes "uncool" (which, frankly, is already happening), it'll lose market share and fall apart. Happened to Myspace before it. It can't control the bleed. The only reason it's survived is that the breadth of its userbase is the primary attraction, there; same with Youtube. It isn't the service itself, it's the audience. And that audience can just up and leave.

That's why we largely don't have that much of an issue with companies like this, as opposed to companies operating predatory sweatshops overseas or abusing literal slave labor like in African diamond mining. Those are the kinds of companies that are problematic, and which need to be targeted. Not frickin' Twitter.

The big complaint with companies like Twitter basically boils down to "the public no longer tolerates our abusive messaging and thus we seek to hurt any company that supports that public and their views". That's why you don't see left-wingers attacking Twitter; their corporate conduct is not harmful. There are bigger fish to fry, and we're only going to get around to companies like Twitter when we're literally dismantling the concept of capitalist ownership economy-wide. That's the only issue with Twitter, from our perspective, and it's not really Twitter's fault in the first place, it's just how business works in a capitalist economy.

[Breccia]

Which is less of a "judicial" issue and more a regulatory issue.

Can we get ESRB ratings?

"Instagram is rated NC-17, as in, you have No Clue what it means if you're over 17"

[Edge-]

Can we get ESRB ratings?

"Instagram is rated NC-17, as in, you have No Clue what it means if you're over 17"

Naw dog, ESRB is an industry group, not a government regulatory agency. Social media companies can come up with their own cool acronyms and ratings systems that will probably all read like Elvish or Klingon to me.

[cubby]

What's even worse is that Thomas is saying this out loud, in a non-court environment. He's literally telling the world, bring me a case, I'll try to hand you this ruling. That's bad form and horrible practice for a sitting SCOTUS Justice.

[Zan15]

Scary that his bias got in the way of interpreting one of the easiest amendments we have

Does he realize once this became the rule of law everything from news, religion to every business in america would have free speech regulated?

god there really need to be term limits on these insane nancy's

[cubby]

Scary that his bias got in the way of interpreting one of the easiest amendments we have

Does he realize once this became the rule of law everything from news, religion to every business in america would have free speech regulated?

god there really need to be term limits on these insane nancy's

I've actually become a fan of term limits, or even better age limits. And what's interesting if that the Circuit and Appellate Courts have age guidelines where Justices become "Senior" members and take on a reduced case load. Obviously this wouldn't work, but at least there is precedence for it.

[Felya]

Yes, it is a private company. Though I don't think they are any normal private company. Given the control a small handful of companies have over the dissemination of information and ideas, it isn't unreasonable to have concerns, and I certainly have some concerns with private companies having that sort of power.

Two problems here... saying this about social media, is an example of out of touch people, who have no idea what social media is nor the technology behind social media. Your entire post can be summarized by complaining about tubes.

Second, what are you going to do about Fox News? They decimate information with an audience of 87 million households. There are 69 million Twitter users in US. Why is social media the problem, instead of corporate news?

... healthcare...

Edit: Fox News averages 3.4 million viewers in prime time, average tweet receives less than 2k engagement. What’s the real problem with social media? Because these excuses are not it...

[DarkTZeratul]

Second, what are you going to do about Fox News? They decimate information with an audience of 87 million households. There are 69 million Twitter users in US. Why is social media the problem, instead of corporate news?

Oh, that's easy. Twitter is banning conservatives, and Fox News isn't.

[Draco-Onis]

Two problems here... saying this about social media, is an example of out of touch people, who have no idea what social media is nor the technology behind social media. Your entire post can be summarized by complaining about tubes.

Second, what are you going to do about Fox News? They decimate information with an audience of 87 million households. There are 69 million Twitter users in US. Why is social media the problem, instead of corporate news?

... healthcare...

I don't think it's as much about being out of touch and more to do with the justices on the court just echoing Fox News. The republican party is all about fascism now not freedom they would turn this country into North Korea in a heart beat.

[Felya]

I don't think it's as much about being out of touch and more to do with the justices on the court just echoing Fox News. The republican party is all about fascism now not freedom they would turn this country into North Korea in a heart beat.

If they are not out of touch, their justification needs to change... because saying social media is “dissemination of information and ideas” heavily implies they are out of touch...

The problem is social media being used as a political tool. As in, your grandma goes to check pictures of her grand kids being posted, to be slammed by posts about Trump saving America from communists. The point of social media is not for politicians to gain entry to people’s lives that are not interested in politics.