Thomas’s opinion in Biden v Knight suggesting that social media platforms might be regulated as common carriers without violating 1A generated a strong reaction yesterday. Now that I've had time to digest, a thread on what I think it got right & wrong, & why it matters. 1/18
The opinion is here: supremecourt.gov/opinions/20pdf… 2/18
1st does it matter? Thomas wrote alone & has idiosyncratic views. So maybe not. But his opinion echoes args that many other conservatives have made. It serves a clear partisan goal. Plus it will be useful to lawmakers who want to regulate. So I predict it will be influential.
What does it get right? Two BIG things. First, common carrier laws DO have a long history and have not generally been thought to violate the 1A. To the contrary: as I argue in a new piece, these laws have always been understood as free-speech promoting. papers.ssrn.com/sol3/papers.cf…
2nd: Thomas is correct that the freedom internet content providers enjoy today is unprecedented. Historically private communications corps in the US have been constrained by common carrier regs OR by threat of civil liability. But social media corps are constrained by NEITHER.
The opinion is therefore correct in identifying a problem. In suggesting the solution might be common carrier regulation, or public accommodations law, he is echoing the args of a lot of lefty thinkers, like @FrankPasquale and @ksabeelrahman . cardozolawreview.com/wp-content/upl…
What does opinion get wrong? Many things! FIRST, the exclusive focus on online platforms is problematic. Thomas suggests that concentration of platform control in the hands of a few private people is “historically unprecedented.” That’s just not true. 7/18
American communication markets have tended to be very concentrated. Western Union enjoyed a greater share of its market at its peak than FB and even Google do today. Meanwhile, a few private persons control important TV and print platforms (Fox News, NYT). 8/18
While Fox News & NYT are more regulated than the internet corps its not by much. 4 decades of deregulatory policy have given these corps lots of power. We should be skeptical of any solutions to the problem of private control of the mass public that focuses only on social media.
What else does the opinion get wrong? The history! Thomas suggests that CC laws are ok because they would have been ok at the founding. But there were no communications CC laws at the founding for the simple reason that the primary comm carrier (the post office) was govt owned.
It's only really in the end of the 19C that the idea of the private communication carrier emerges. So the originalist arg is complicated. cc @superwuster
More important, Thomas’s opinion obscures the last four decades of laissez faire 1A law. For decades now, the Court has interpreted the 1A to give owners a virtually unlimited right to exclude speech from their property or otherwise control its expressive use. 12/18
This view of the 1A contrasts strongly with the view Thomas provided yesterday, BUT IT IS IS A VIEW THAT Thomas has in the past gone along with. (This is what produced the sudden and collective whiplash of First A scholars around the land.) 13/18
It is true that in a few cases the Ct has allowed govt to impose access restrictions on private property owners but in all those cases, the Court has insisted that is only possible b/c property owner wasn’t really using the property to speak, or exercising editorial discretion.
That simply isn’t the case with the platforms, which make editorial judgments about speech all the time. Now on my view of the 1A (which isn’t laissez faire) that fact doesn’t mean the govt can’t regulate them. But for proponents of a laissez faire 1A it DOES. 15/18
So at the very least, the opinion obscures the extent to which Thomas has gone along with the rules this opinion calls into Q. And, interestingly, it suggests that there may now be a split on Ct between deregulatory and pro-regulatory conservatives when it comes to social media.
The big Q for me is where are the liberals on all this. Are they persuaded by Thomas’s pseudo-historical arguments? Do they remain committed to the laissez faire 1A? Or do they want to take a walk with me to another 1A—one that isn't laissez faire? 17/18
Only time will tell. But what interesting times they will be indeed! The end.
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