The Supreme Court on Monday considered former President Donald Trump’s appeal against a decision he said was unconstitutional for him to block arguable criticism after a lower court found his page a protected public forum.
The court asked for the case to be closed, as Trump is no longer in office and Twitter blocked him on the platform. Judge Clarence Thomas agreed with the decision in light of Trump not being president anymore, but the conservative jurist illustrated the complexity of the matter, as Trump ultimately had no full control over his own account.
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“[I]”It seems a little strange to say that something is a government forum when a private company has unrestricted authority to eliminate it,” wrote Thomas in a concurring opinion.
The Second Circuit Court of Appeals ruled against Trump, claiming that, as president, he used his Twitter account to discuss political issues and, therefore, the interactive participation of comments in his tweets was considered a public forum protected by the First Amendment. Blocking those who criticized him, therefore, was discrimination from an unconstitutional point of view, they had decided.
Thomas noted that while Trump had the power to block other users, Twitter was then able to block “all Twitter users from interacting with his messages” by completely banning his account.
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“As the uncontrolled control of the account resided in the hands of a private entity, the First Amendment doctrine may not have applied to the respondents’ muffled speech complaint,” pointed out Thomas, saying that “[w]If governmental use of private space implies the First Amendment, it often depends on government control over that space. “
Thomas recognized how modern technology is not always easily addressed by existing legal doctrines and warned that the Supreme Court “will soon have no choice but to address how our legal doctrines apply to highly concentrated private information infrastructures, such as digital platforms” .
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With that in mind, he warned that the power wielded by social media giants like Twitter presents its own problems.
“The Second Circuit feared that then President Trump would cut off the speech using the resources that Twitter made available to him,” said Thomas. “But if the goal is to ensure that speech is not stifled, then the most glaring concern must necessarily be the dominant digital platforms themselves. As Twitter has made clear, the right to cut speech is more powerfully in the hands of private digital platforms. How important this power is for the purposes of the First Amendment and how much of that power can be legally modified raises interesting and important questions. “
Fox News’ Shannon Bream and Bill Mears contributed to this report.