The provocative and controversial opinion comes at a time when Twitter banned former President Donald Trump from his platform for violating his rules of incitement to violence and some conservatives have called for more regulations in the world of technology to combat what they consider political prejudice on social media .
Thomas’s stance will raise concerns from critics who point out that social media platforms have historically not been subject to such content regulation, but have instead been left to plan their own policies.
“Judge Thomas’ opinion represents the first time that we have seen a Supreme Court judge appear to endorse the increasingly prevalent view among conservatives that private social media platforms should potentially be subject to significant government regulation, despite the First Amendment. “said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
But Thomas said the question prompted him to think about the “main legal difficulty surrounding” a digital platform, specifically the concentration of power in the hands of so few owners of social media companies. He took the opportunity to suggest further exploration, which could lead to a radical shift to technology platforms if they gained traction.
Today’s digital platforms, Thomas argued, “provide paths to volumes of historical unprecedented speech”, but he said they also focus control “of so much speech in the hands of some private parties”.
In particular, he pointed out that Twitter was able to remove anyone from the platform – “even the president of the United States”.
“As Twitter has made clear, the right to interrupt speech is more strongly in the hands of private digital platforms,” said Thomas.
“How important that power is for the purposes of the First Amendment and how far that power can be legally modified raises interesting and important questions,” he added.
“We are fortunate that many of the cases we saw allege only improper rule changes, not fraud. But that observation provides only a small comfort,” said Thomas, disagreeing as the court rejected a long-awaited challenge to the correspondence voting procedures of Pennsylvania.
On Monday, Thomas emphasized that Facebook, controlled by Mark Zuckerberg, has almost 3 billion people using it and that Google raised $ 182.5 billion last year, 40.3 billion in net profit.
The conservative judge said the court would soon “have no choice” but to address how legal doctrines apply to “privately owned information infrastructure, such as digital platforms”.
Public services and ‘common operators’
He questioned whether platforms should be seen as “common carriers”, like train services and telephone companies that have historically been subject to government regulations because of the essential service they provide to the public.
Katie Fallow, a First Amendment specialist at the Knight Institute of Columbia University’s First Amendment, said the group really shares Thomas’s concern about the power of the word being concentrated in the hands of so few. “But we think that concentrating that same power in the hands of government regulators will not necessarily solve the problems associated with social media companies.” Instead, she feared that it could aggravate the problem.
“Therefore, even if the platforms were treated as’ common carriers’,” she said, any attempt to regulate the content of the platforms’ content “would raise significant First Amendment concerns.”
Vladeck noted that none of the judges joined Thomas in his opinion on Monday and the real question is whether they will adopt that position in the future.
“Of course, this is not the first time that Judge Thomas has offered an idiosyncratic view of the First Amendment,” said Vladeck. “The big question is whether any of his colleagues agree with him.”