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Clarence Thomas: Social Media Doesn’t Have First Amendment Protections, Comparing Them To ‘Public Accommodations’

Thomas said social media companies do not have a First Amendment right to ban protected speech, and that Section 230 is unconstitutional.

We put forth much the same in our tech giant free speech lawsuit:

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Unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds.
[…]

Denying a person or organization access to these important social media forums based on the content and viewpoint of the person’s or organization’s speech on matters of public concern is an effective way of silencing or censoring speech and depriving the person or organization of political influence and business opportunities.

Due to the importance of social media to political, social, and commercial exchanges, the censorship at issue in this Complaint is an unmatched form of censorship. Section 230 permits content- and viewpoint-based censorship of speech. By its own terms, § 230 permits Facebook, Twitter, and YouTube “to restrict access to or availability of material that [they] consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Except that’s not what Section 230 does at all. Companies are already permitted to do that because they’re private companies. All Section 230 says is that in removing content, that doesn’t mean those companies suddenly have liability for other content that they left up. Geller and her lawyers simply don’t understand what Section 230 does and says. And yet they’re suing over it.

Section 230 confers broad powers of censorship, in the form of a “heckler’s veto,” upon Facebook, Twitter, and YouTube censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government.
[…]

Clarence Thomas Hints That Congress Could Strip Social Media Giants Of First Amendment Protections, Comparing Them To ‘Public Accommodations’

By Ian Haworth • Daily Wire Apr 5, 2021 •

WASHINGTON – MARCH 13: U.S. Supreme Court Justice Clarence Thomas testifies before the House Financial Services and General Government Subcommittee on Capitol Hill March 13, 2008 in Washington, DC. Thomas and Justice Anthony Kennedy spoke about concerns with the ongoing remodeling of the court building, the reduction of paperwork due to electronic media and the disparity of pay between federal judges and lawyers working in the private sector.
Chip Somodevilla/Getty Images

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.

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