Furthest Right

Back to Marsh v. Alabama

Today the Supreme Court vacated the infamous Trump Twitter case:

The New York-based 2nd Circuit found Mr. Trump’s decision to block seven users from interacting with his Twitter account was unconstitutional, as the space associated with the former president’s account was a designated public forum.

In an opinion concurring with the court’s decision to throw out the case, Justice Clarence Thomas said the dispute “highlights the principal legal difficulty that surrounds digital platforms — namely, that applying old doctrines to new digital platforms is rarely straightforward.”

“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” Thomas wrote. “The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.”

In other words, Trump blocking seven users from his Twitter profile was not unconstitutional, nor would be, in theory, Twitter banning Trump.

However, Thomas added some guarded language:

Noting Twitter’s ability to bar the former president from the platform, as it did in January, Thomas called the disparity between Mr. Trump and Twitter’s control “stark” and said “concentrated control of so much speech” today rests with a handful of digital companies.

“We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms,” he wrote.

This joins other voices in saying that monopoly-owned public spaces may be subject to Bill of Rights restrictions, since the monopoly (Twitter, in this case) is acting like local government.

That attitude follows previous cases where courts found that privately owned spaces can be public areas and therefore, require freedom of speech:

In other words, if it acts like a public space, it is a public space as far as Constitutional rights are concerned. The interesting argument here translates into the question, “If this business concern were to make itself a municipality, what rules would it be forced to obey?”

If Twitter — which one accesses from public internet, including some subsidized by government in libraries and schools — were a municipality, it could not recklessly ban conservatives. Since there is no public equivalent, and Twitter acts like a public virtual space, speech rights apply there.

The same applies to Facebook, Reddit, YouTube, Google, and other market leaders who not only act as public spaces, but through their dominance of the market, have effectively excluded other competition from offering the same “network effects” that they do, mainly because “everyone” is already on these platforms.

In this way, these social media sites are more like a toll road or a phone service than other type of business. They are a means through which people reach other people. They are de facto required in order to reach these people directly, much as a telephone line is.

Other than common carrier doctrine, our law has still not wrapped itself around virtual spaces, which consist of a private component, since they pass over wires and servers which are privately owned, and a public one, which is that their only utility consists on use by general public.

Another option would be to treat social media as a Leftist PAC or Leftist-run territory, and subject it to the same rules for fairness which are applied to political campaigns and public protests.

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