Getty Images | Drew Angerer
With tech groups asking the U.S. Supreme Court to block Texas’ new law against social media “censorship,” the state’s defense is relying in part on advice delivered last year by Judge Clarence Thomas in a case involving Donald Trump and Twitter were involved.
Thomas’s opinion, as we wrote at the time, criticized the Section 230 legal protections given to the moderation decisions of online platforms and argued that the free speech law should not necessarily prevent lawmakers from regulating those platforms as common carriers.
“In many ways, digital platforms making themselves known to the public resemble traditional common carriers,” Thomas wrote. “Although digital rather than physical, they are on the lower communication networks and ‘carry’ information from one user to another. A traditional telephone company laid physical wires to create a network that connects people. Digital platforms build an information infrastructure that can be controlled in much the same way.” The similarity between online platforms and mainstream providers “is even more apparent for digital platforms with a dominant market share,” Thomas also wrote.
The April 2021 advice had no immediate practical consequences. It was unanimous in a case in which the Supreme Court reversed a 2019 appeals court ruling that then-President Donald Trump violated the First Amendment by blocking people on Twitter. The court declared the case “disputable” because Trump was no longer president.
But Thomas’s opinion raised eyebrows at the time and was cited yesterday in Texas’ response to Big Tech’s attempt to block a state law that prohibits social media companies from moderating content based on a user’s “point of view.” . With help from the Thomas opinion, Texas Attorney General Ken Paxton argued that Texas can regulate social media platforms as common carriers.
Texas law declares platforms to be common carriers
“Even if the Hosting Rule somehow implied the platforms’ First Amendment rights, the Attorney General will likely still prevail because Texas law declares the platforms common carriers. of the platforms to properly discriminate between their customers,” Paxton argued.
Referring to historical examples of telegraphs, telephones and cable operators, Paxton told the Supreme Court that “Texas has an equally compelling interest in preserving the ability of its residents to communicate and receive information on the platforms as states had regarding these previous generations of communication technology.”
There is “little doubt that the platforms resemble historical communications providers enough to warrant the continued application of these principles, as Justice Thomas has explained,” Paxton wrote, citing Thomas’ concurring opinion in the Trump case. When asked “whether the platforms possess market power,” Paxton again quoted Thomas as writing that “[s]lawyers have always suggested that they believe the platforms wield such power.” Paxton also quoted Thomas’s statement that the social networks have become “dominant digital platforms.”
Texas also quoted Thomas’ concurring opinion earlier in the process when filing memoranda in lower courts.
Texas, Florida Laws Blocked Under First Amendment
Despite Thomas’s opinion, courts have ruled that the First Amendment does not prohibit websites from restricting speech on their platforms. Even after Thomas voiced his opinion, Texas law and a similar one in Florida were blocked by federal judges who ruled the laws violate the First Amendment right of social media companies to moderate user content. In addition, section 230 of the Communications Decency Act explicitly states that online platforms cannot be held liable for restricting access to content that the platforms deem objectionable, “whether or not such material is constitutionally protected.”
Though the Texas law was originally blocked by a U.S. District Court judge under the First Amendment, it was revived last week by the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit judges issued a one-sentence injunction not explaining their reasons for upholding the injunction. Big Tech groups then asked the Supreme Court to reinstate the injunction to prevent Texas from enforcing the law while the trial continues.
Florida law remains blocked and the state is very interested in the outcome of the battle in Texas. Florida filed a Supreme Court memorandum yesterday in support of Texas, and the Florida memorandum was co-signed by 11 other states: Alabama, Alaska, Arizona, Arkansas, Iowa, Kentucky, Mississippi, Missouri, Montana, Nebraska and South Carolina.
“Amici states have a strong interest in defending sovereign state regulatory authority in this area,” the Florida briefing said. “Indeed, many states have passed or are considering laws similar to the laws of Texas and Florida, and believe the Fifth Circuit was correct to hold the district court order pending appeal.”
The Texas law applies to social media platforms with “more than 50 million active users in the United States in a calendar month.” It states that a “social media platform should not censor a user” based on the user’s “point of view” and defines “censorship” as “block, ban, delete, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against speech.” Under the law, users or the Texas Attorney General can sue platforms that violate the ban.
