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
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.
@evelyndouek and @blakereid: remember that convo we were having about reimagining the First A. It is happening... A few years ago, the dominant conservative judicial position was that net neutrality violates First A. But winds keep shifting! (1/2)
What is interesting here is the use of history to support the point. History does help! This is b/c the current laissez faire view of the First A is historically extraordinary. But up until like 5 seconds ago that (almost) never stopped Thomas from joining in. (2/2)
What is also notable tho is the SELECTIVE use of history. Thomas claims the concentrated power that the platforms possess is unprecedented but that is clearly wrong. Paging Western Union, CBS, NBC, Rush Limbaugh... (3/5)
Since the detailed and ambivalent account of the FOB that @klonick recently published in @NewYorker is generating so much discussion, I thought it might be useful to place the FOB in a broader historical trajectory: what is new here and what isn’t? h/t @rickhills 1/15
First, most obvious pt: we have dealt with similar problems before! We tend to regard the FB prob--a private corp controlling the mass public sphere—as unprecedented, but that is just not the case. At the Founding, the fed gov was primary regulator of the mass public. 2/15
But ever since the fed gov decided in 1850s to not create a public telegraph—a decision that shocked many, including its inventor, Robert Morse, who thought only a dem gov should have this power—private corps have played a crucial role in regulating our public sphere. 3/15
A quick thread for those worried about the impact of the Great Deplatforming on freedom of speech in the US: the platforms are not the only private companies that control who gets to speak in the mass public sphere. Radio and television companies do too! 1/12
Today SCOTUS will hear args in a case raising the Q : what kinds of evidence must the FCC have before it can lift caps on radio and TV ownership meant to guard against the domination of the mass public by any one viewpt or actor. 2/ scotusblog.com/case-files/cas…
These ownership caps were payback for the great corporate giveaway of the 1934, when the fed gov gave YOUR public property (the airwaves) almost entirely to for-profit companies, who continue to control YOUR property for free. 3/12
The House Judiciary Comm has similarly accused Trump (correctly, obv.) of attempting to convince "his supporters, falsely, that they actually voted him back into power.” judiciary.house.gov/uploadedfiles/…
A thread on Trump’s deplatforming and why I think the debate about it reveals the bankruptcy of contemporary free speech law. 1/17
Many of those who approve of the platforms’ decisions to ban Trump argue that current First A law grants speakers no right of access to privately owned property. and conclude that there is no free speech issue here. 2/17
They’re right on the doctrine: the Roberts Court has gone to extraordinary lengths to make clear that private actors enjoy total freedom under the First A to censor whatever speech they like. 3/17
It's disturbing in part because it's not obvious that existing First Amendment doctrine provides any protection to protestors who are prosecuted for resisting arrest or brandishing a weapon like a liquor bottle but who are really prosecuted because of their speech.
As in other contexts, prosecutorial discretion ends up taking a big bite out of our constitutional rights. Judges play a role too! The article reports that in one case a judge agreed to lower a protestor's bond only if he agreed to refrain from further public protest.