So far, big tech has had a busy April at the Supreme Court. It began with the high court’s unanimous ruling that a federal statute forbidding autodialed nuisance calls does not apply to Facebook because its technology does not fit within the law’s definition. Less than a week later, the justices sided with Google in a dispute with Oracle, holding that Google did not violate Oracle’s copyright when it lifted roughly 11,500 lines (but still a very small fraction of the total) of Java code for the Android operating system. Important as those cases are, today’s column focuses on a seemingly more minor one—decided the same day as the Google case and involving yet another tech heavyweight, Twitter.
In a two-sentence order, the Supreme Court granted review and vacated a federal appeals court ruling that the president could not block users’ access to his Twitter account. The case had been brought against President Trump in his official capacity. Ordinarily, a change in administration results in the substitution of the new office holder for the former one, but because the case was unique to conduct by President Trump, the inauguration of President Biden mooted it.
Agreeing with the conclusion that the case is now moot, Justice Clarence Thomas wrote a concurrence in the order in which he opined on what he thought an oddity of the appeals court decision, which held that Trump’s Twitter feed was a public forum even though it was controlled (and eventually suspended) by a private company. Justice Thomas went on to argue that the First Amendment might permit Congress to forbid Twitter from moderating content on its site.
Justice Thomas’s reasoning is deeply flawed. It thinly veils right-wing grievance politics with a post hoc rationalization based on the supposed views of the eighteenth-century ratifiers of the Constitution. Nonetheless, as I explain below, the bottom line may well be right for reasons that Justice Thomas and other conservatives would not likely endorse.
Was Trump’s Twitter Account a Public Forum?
Many laws and regulations validly restrict access to government property, but a well-established line of cases holds that some particular forms of property are “public fora” in which the First Amendment grants people a presumptive right of access. Some kinds of government property—such as streets, sidewalks, and parks—are so-called “traditional” public fora, whereas other kinds may be deemed public because the government has so designated them. In addition, the Supreme Court has recognized that a forum need not be a literal space. Thus, in the 2017 case of Packingham v. North Carolina, the Court described “cyberspace . . . and social media in particular” as “the most important places . . . for the exchange of views.”
Packingham involved (and there the Court struck down) a state law that restricted some individuals’ access to the Internet. By contrast, no law restricted anyone’s access to Trump’s Twitter feed. That is hardly dispositive, however, because the First Amendment has long been understood to limit executive as well as legislative actions. The core complaint of the plaintiffs was that Trump, acting as president, censored them. The appeals court agreed, holding that Trump’s Twitter feed was a public forum to which access could not be denied based on users’ viewpoints in opposition to Trump’s own.
Justice Thomas expressed consternation: “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 wrote. He is right that the conclusion is odd, but Trump, not the appeals court, is responsible for the oddity. As president, Trump chose to use Twitter for official communications. If his interactions with supporters and critics would have been subject to First Amendment constraints had they been conducted through official government channels, as they would have been, he should not be permitted to evade those constraints by relying on the services of a private company—even one whose terms of service he would eventually violate and which would thus suspend his account.
Private Firms and the First Amendment
Beyond his Trump-specific concerns, Justice Thomas also raised a broader question about how the Court’s speech-related “legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” On the face of the matter, the answer is clear. Like nearly every other provision of the Constitution, the First Amendment restricts government but not private actors.
Indeed, private firms are not simply unregulated by the First Amendment; they affirmatively receive protection through it. Thus, in a 1974 case involving the Miami Herald, the Supreme Court invalidated a Florida law giving candidates for office a right of reply to articles criticizing them on the ground that the law unconstitutionally infringed the publishers’ editorial discretion to decide what to print and what not to print.
Except in special contexts, more recent cases apply the principle of the Miami Herald case to a variety of media. To give an obvious example, if they chose to do so, the editors of Verdict could give Justice Thomas, former President Trump, or anyone else I have criticized on this site an opportunity to reply to one of my columns, but they cannot be compelled by the government to do so.
In his concurring opinion last week, Justice Thomas suggested otherwise. He raised the possibility that Twitter, Facebook, and other Internet platforms could be subject to “common carrier” obligations—essentially a legal duty to publish whatever anyone wants to put on their sites. In so suggesting, Justice Thomas went well beyond current law. Under Section 230 of the Communications Decency Act, platforms receive substantial immunity against liability for content posted by others, but nothing in the Act obligates platforms to post anyone’s material.
Why does Justice Thomas think that the First Amendment would allow the imposition of common-carrier obligations on Internet platforms like Twitter? A self-described originalist, Justice Thomas asserted that “regulations that might affect speech are valid if they would have been permissible at the time of the founding” and that there was a long history in England and colonial America “of restricting the exclusion right of common carriers.” His reasoning is extremely problematic.
As Professor Eric Segall noted on my blog earlier this week, the Roberts Court free speech jurisprudence is highly nonoriginalist, even anti-originalist. Although Justice Thomas professes originalism, he has joined opinions finding free speech rights of corporations to violate campaign finance regulations, of individuals to avoid paying state-mandated fees to unions, and more, without even attempting to show that such laws would have been deemed impermissible at the time of the founding. It seems that Justice Thomas is an originalist when it comes to overriding the free speech claims of firms (like Twitter) that he deems hostile to conservatives but a living constitutionalist when it comes to upholding free speech by conservatives.
Apart from the hypocrisy, Justice Thomas is wrong about the precedents. For the proposition that regulations that would have been valid in 1791 are valid today, Justice Thomas cites one case, the 2010 ruling in United States v. Stevens. Yet that case does not support the sweeping claim he makes. The government argued in Stevens that the Court should recognize depictions of animal cruelty as a new category of unprotected speech. The Court (in an opinion that Justice Thomas joined) refused. Chief Justice Roberts wrote for the majority that there were a few accepted categorical limits on free speech that existed in 1791 and still today, but that it would not expand the list of categories. Stevens was a case about which categories of speech are unprotected. The Court had no occasion to say and did not say that any particular regulation that might have been on the books in 1791 is therefore immune to free speech scrutiny today.
Justice Thomas makes matters worse by invoking the tradition of recognizing common carrier and public accommodations obligations applicable to non-expressive business. Yes, at the time of the founding, if a retail shop sold tins of tea or a ferry service sold passenger tickets, the common law imposed an obligation to make those goods and services available more or less to all comers. That tradition lives on today in anti-discrimination law. However, for Justice Thomas to turn to these historical antecedents in a free speech case, he ought, at a minimum, to point to instances of founding-era common carrier obligations that were imposed on expressive businesses.
Did colonial Pennsylvania impose on Benjamin Franklin an obligation to print replies to critical articles in Poor Richard’s Almanack? Was Robert Bell, the publisher of the first edition of Thomas Paine’s Common Sense, obligated to publish loyalist rejoinders? If so, and if these impositions were widely accepted as consistent with freedom of speech and the press, then perhaps Justice Thomas would be justified in saying that there is a relevant founding-era tradition. Even so, that would not resolve the matter, given how pervasively nonoriginalist free speech doctrine is. But notably, Justice Thomas does not even try to identify something like a common-carrier obligation being imposed on an expressive business at the founding.
The Progressive Argument Justice Thomas Does Not Make
Despite the fact that Justice Thomas offers only disingenuous and unpersuasive grounds for the enactment and upholding of laws imposing common carrier obligations on Twitter and other Internet platforms, there may be another line of argument that is persuasive. In the late nineteenth and early twentieth centuries, progressive politicians and scholars argued that very large private actors exercise power over people’s lives comparable to and sometimes even exceeding that of government. Accordingly, these progressives argued, such firms should be subject to the same sorts of norms that the Constitution applies to the government. Modern statute books preserve the progressive legacy in laws governing antitrust, labor, civil rights, and much more.
Would Justice Thomas and the other conservatives on the Roberts Court accept the progressive argument for constraining the speech (in the form of editorial discretion) of concentrated private power in order to enhance the speech of individual natural persons? Almost certainly not. To do so would require not only going against their ideological druthers but disregarding much modern free speech jurisprudence.
The Miami Herald case specifically rejected a progressive-style argument for allowing the right-of-reply law despite extensive evidence of media concentration. Likewise, in the leading decision invalidating campaign finance regulation, the Court said (and has since repeated) that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
Yet the fact that modern case law rejects some progressive premises does not mean that the modern case law is right. After all, modern First Amendment doctrine can be traced to prophetic dissents by Justice Louis Brandeis, who, in his pre-judicial career, was among the most eloquent champions of the progressive ideal. He did not regard it as foreign to the First Amendment.
Neither should we. Justice Thomas is an unlikely and almost certainly unwitting champion of the progressive ideal. Nonetheless, if he really wants to find a basis for subjecting powerful private actors to regulation in the interest of enhancing speech overall, he will need to look to Brandeis and other progressives, not to an imagined and self-serving version of the founding.