SCOTUS Justice Clarence Thomas argues social media platforms are “sufficiently akin” to common carriers and can be regulated “in much the same way”
ProtocolIssie Lapowsky
Context & Ripple Effects
Thomas had already questioned the breadth of Section 230 in a separate call to narrow platform immunity. His common-carrier framing extends that line of thinking from liability protection to the terms on which platforms may be regulated.
The argument became a key reference point in disputes over Texas and Florida platform laws: later justices raised companies’ First Amendment concerns, and the Court ultimately sent the cases back for a proper First Amendment analysis.
First-order effects
Thomas’s position gives state lawmakers and litigants a constitutional theory for imposing access or carriage-style duties on social-media platforms.
Platforms face a more direct challenge to the premise that their content-moderation choices are insulated from utility-style regulation.
Second-order effects
Texas’s later defense of its social-media law drew on the same common-carrier theory, putting platform moderation policies at the center of state-by-state legal challenges.
The focus shifts from Section 230 alone to the competing First Amendment claims of platforms and governments seeking to regulate them.
Third-order effects
If common-carrier theories continue to be tested in court, platform governance will be shaped increasingly by constitutional review of state access mandates rather than by federal liability protections alone.
The Court’s remand of the Texas and Florida cases suggests the durable fault line is whether regulation of platforms’ editorial choices can survive First Amendment scrutiny.
The trend: Platform regulation is moving from debates over intermediary immunity toward constitutional fights over whether major services can be compelled to carry speech or serve users on regulated terms.
🚨Clarence Thomas suggests that social media companies may NOT have a First Amendment right to regulate speech on their platforms, analogizing them to “common carriers” and “places of public accommodation.” https://www.supremecourt.gov/ ... https://twitter.com/...
You know the conservatives who have been arguing—unsuccessfully so far—that social media companies are so powerful that Congress can essentially override their own First Amendment rights and force them to host certain speech on their platforms? Thomas just endorsed that argument.…
In other words, Clarence Thomas is inviting Congress to ban social media companies from engaging in content moderation by stripping them of their own First Amendment rights and transforming them, for legal purposes, into common carriers or public accommodations.
Justice Clarence Thomas wants the **government** to regulate speech on the internet. If you are a Republican who supports this view, don't ever lecture anyone on free speech ever again. https://twitter.com/...
!!! Thomas cites arguments that Section 230, which provides immunity to platforms for third-party content, *violates the First Amendment.* https://www.supremecourt.gov/ ... https://twitter.com/...
Justice Thomas's take is anti-free speech, inconsistent with his prior stances, and deeply shortsighted. Section 230 *protects* the freedom of speech on the internet. The unintended consequences of diluting or deleting it will be devastating, perhaps most of all to conservatives.…
Some seem to be misunderstanding the issue. It's not whether discrimination by common carriers or public accommodations is unconstitutional. It's whether states or localities barring such discrimination is unconstitutional under existing law or original meaning of the 14th Amend.…
I am confident that Clarence Thomas' rallying cry for legislation overriding social media companies' First Amendment rights and forcing them to host speech is *entirely* about right-wing fears that Twitter, Facebook, etc. are censoring conservative speech. https://www.supremecour…
Justice Thomas on making cable companies carry public access channels (think Wayne's World, only more boring and sometimes civic-minded): That's forced speech, threatens cable companies' editorial rights, gets heightened scrutiny. https://scholar.google.com/... https://twitter.co…
Justice Thomas on compelling platforms to carry hate speech and other TOS-violating content: No biggie, platforms' own editorial rights are not a serious barrier, the Framers would be down with this. Probably intermediate scrutiny. https://www.supremecourt.gov/ ... https://twitte…
The dominant social media companies can and should be regulated like public utilities. Just like a telephone company cannot lawfully discriminate, neither should large digital communication platforms. https://www.protocol.com/...
SCOTUS vacates lower court ruling on Trump's Twitter blocks and says it's now moot. Thomas concurs, then raises questions about the free-speech implications of Twitter's decision to ban him. https://twitter.com/...
NEW: The Supreme Court agrees to take up one new case, Brown v. Davenport. It's a technical but important question about the standard for federal courts reviewing habeas claims to assess whether constitutional violations were “harmless error.” https://www.supremecourt.gov/ ...