On Monday, Supreme Court Justice Clarence Thomas seemed to argue that social media companies such as Facebook and Twitter may not be able to hide behind the First Amendment in their attempts to regulate various forms of speech on their platforms.
Most notably, the legendary Justice compared the Big Tech giants to “common carriers” and “public accommodations.”
“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.