In a win that could well be the opening salvo in stripping social media giants Facebook and Twitter of the ability to use algorithms to determine what is to be displayed, and what information will get warnings in users’ news feeds, Senior Supreme Court Justice Clarence Thomas penned an opinion – which was not disseminated at all – that vacated a lower court ruling against President Donald Trump regarding blocking Twitter followers.
Essentially, the elder justice told the platform owners, that just because the venues are privately owned, they are still subject to the first amendment.
“Even if digital platforms are not close enough to common carriers, legislatures might still be able to treat digital platforms like places of public accommodation. Although definitions between jurisdictions vary, a company ordinarily is a place of public accommodation if it provides ‘lodging, food, entertainment, or other services to the public … in general,’” Thomas wrote, adding that “Twitter and other digital platforms bear resemblance to that definition.”
“Once again, a doctrine, such as public accommodation, that reduces the power of a platform to unilaterally remove a government account might strengthen the argument that an account is truly government-controlled and creates a public forum,” Thomas continued. “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.”
“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,” Thomas added.
And thus the door is open for Congress to declare social media platforms where commenting is a regular course of action public accommodations, and therefore the actual management of the systems MAY NOT censor speech.
Some days, life is good like that.