Is Twitter A Common Carrier?
By DEACON MIKE MANNO
Two weeks ago I wrote about Judge Laurence Silberman’s critique of the current state of the U.S. media, which he found to be biased against conservatives and Republicans. By way of warning, the judge, a member of the D.C. Circuit Court of Appeals, wrote: “The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is — I say this advisedly — fundamentally un-American.”
The context of the case in which the judge made those remarks concerned how he saw the judicial misuse of the Supreme Court’s rulings requiring the showing of “actual malice” by certain plaintiffs in defamation cases. That standard, the judge opined, allowed the media to “cast false aspersions on public figures with near impunity.” And, he noted, most of the false aspersions cast were against Republicans and conservatives.
In addition to taking on the press, the judge also criticized social media for its display of favoritism by banning certain persons and issues from their platforms. But now another judge, this time Associate Justice of the Supreme Court Clarence Thomas, took up a similar issue in another case. This one involved actions President Trump took to keep people from commenting on his Twitter feed.
The plaintiffs had alleged that Mr. Trump violated their First Amendment rights by blocking their comments. At the heart of the issue was Twitter’s policy of allowing users to block others from republishing or responding to posts. The Second Circuit Court of Appeals had held that the comment threads were a “public forum” and that the plaintiffs’ rights were violated by the block. The Supreme Court rejected the appeal as moot, since Mr. Trump was out of office (in fact, the case name had been changed to reflect the change of administrations).
Justice Thomas concurred with the decision, and like Judge Silberman, used the opportunity to opine on what he considered possible erroneous protections given to digital platforms, such as Twitter, and how those protections are out of step with the times by “applying old doctrines to new digital platforms. . . . Respondents have a point, for example, that some aspects of Mr. Trump’s account resemble a constitutionally protected public forum. But 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 continued, “The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages.”
The case, he said, highlighted the difficulty surrounding digital platforms in trying to apply old legal doctrines to the new digital platforms. He suggested that it did show that some aspects of the president’s account did appear to resemble a public forum which is constitutionally protected. Then he observed that it is difficult to claim something that a private entity has an unrestricted right to do away with is such a protected forum.
Since “unbridled control” of the Twitter account belonged to a private entity, that entity is not ordinarily constrained by the First Amendment. Thus, in general, private parties can do as they wish. But he noted that there are several exceptions to that rule and suggested: “If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.”
Some legal doctrines do limit that right. Foremost among them, and most analogist to the current situation, involves common carriers and public accommodations. In each the entity involved is required to service all customers, and in the case of common carriers, must do so in exchange for certain privileges.
“This Court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when ‘a business, by circumstances and its nature . . . rise[s] from private to be of public concern’.”
One example of business of this type is the telegraph, Justice Thomas wrote, because telegraphs “resembled” and were “analogous enough” to railroads and other common carriers.
Since the government required that common carriers cater to all, the government usually provided some benefit, for example, protection from competition and immunity from certain types of lawsuits. In the case of the telegraph, and now telephonic communications, that protection was against defamation lawsuits. Thus the government places these companies in a special category.
“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot ‘be treated as the publisher or speaker’ of information that they merely distribute.”
As a result Congress has given these platforms immunity from certain types of suits but it has not imposed corresponding responsibilities. “Yet Congress does not appear to have passed these kinds of regulations. To the contrary, it has given digital platforms immunity from certain types of suits, with respect to content they distribute but it has not imposed corresponding responsibilities, like nondiscrimination, that would matter here,” he stated, referencing §230 of the Communication Decency Act which protects these platforms.
Turning to businesses that are public accommodations, he wrote, “The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny — especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech….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. . . .
“Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet — and users rarely do — Google is the gatekeeper between that user and the speech of others 90 percent of the time. It can suppress content by de-indexing or down-listing a search result or by steering users away from certain content by manually altering autocomplete results. Facebook and Twitter can greatly narrow a person’s information flow through similar means.”
Thus, Justice Thomas suggests that if the analogy between common carriers and digital platforms is correct, the concept could be the basis for laws that restrict its ability to de-platform most users. And: “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….Twitter and other digital platforms bear resemblance to that definition.”
Now, if there is that much concern over the ability of Twitter, Facebook, and the rest to limit speech and control the flow of information, the good Justice might just have the answer. But if you read his comments you’ll see that the effort must start with legislation, either on the state level or through Congress. Interesting options; glad these two jurists took the time to put their ideas down.
Now, who’s going to follow up?
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. Central Time on Faith On Trial on IowaCatholicRadio.com.)
