This post is a summary of Episode 14 of The Nebraska Governance & Technology Center’s (NGTC) Podcast Series, Tech Refactored. Host Gus Hurwitz, Director of the NGTC, was joined by Eric Goldman, Professor at Santa Clara University School of Law and Co-Director of the High Tech Law Institute.
In the wake of the removal of former president Trump and other users from major online platforms, discussions of the scope of the First Amendment, and to a lesser extent Section 230 of the Communications Decency Act (“Section 230”), have permeated the public discourse. Widespread anger amongst some segments of the population at what they perceive to be unfair/ differential treatment of conservative voices has led to calls for state laws to be enacted, requiring internet platforms to carry all content that doesn’t violate the first-amendment in some fashion, a move that would effectively treat internet platforms as public actors. A recent concurrence by Justice Thomas seems to suggest at least some some support for such legislation.
Hurwitz and Goldman began by discussing that concurrence, wherein Thomas used a relatively tangential underlying case to lay out a framework under which he identifies certain categories of what he terms “digital platforms” that might be subject to restrictions on their ability to remove content either because they’re “common carriers,” or because they’ve become “places of public accommodation.” Both of these classifications are significant in Supreme Court caselaw because they limit an entity's ability to discriminate against certain protected classifications of individuals or other entities.
First, an explanation of those two basic categories; “common carriers” and “places of public accommodation.” Hurwitz defines common carriers as entities “that are subject to rules that require them to ‘take all carriers:’ things like telecommunications, electricity companies, trains, planes” etc.. “They can’t turn away customers, and they generally need to have posted rates.” The reason these “common carriers” are subject to these rules is that the government has made the decision that it is inefficient for us to have, for example, several redundant networks of train tracks, because economically it doesn’t make sense. So the government confers a monopoly on these entities, but requires them to accept all potential users. Because common carriers are required to treat all users equally- its application in the case of online platforms would limit their ability to remove content that they might find objectionable.
Thomas’s other proposed framework for thinking about online platforms is as “places of public accommodation,” a concept that dates back to the civil rights laws of the 1960s. The doctrine of “places of public accommodation,” explained Goldman, provides that “certain businesses can’t discriminate among their customers on the basis of protected classifications,” such as race. As Goldman explains, “in general, we think about ‘public accommodations’ as being physical places, not virtual places. And there has been a relatively bright line over the years on that” (...) “though that line has become, I think, murkier over the years.”
So why then did Thomas outline this new paradigm in a case that was only tangentially related to the framework he laid out? Goldman notes that, at this point we can only really speculate on that point, but “(Justice Thomas) is clearly bothered by the idea that Twitter can pull the plug on someone as powerful as the president. (...) It’s become a pretty well accepted trope in what I’ll call conservative circles, that the power that Twitter has, and other social media services have, is being wielded disproportionately against conservative viewpoints.”
Goldman notes that the First Amendment operates as a baseline protection of free speech, and Section 230 represents an enhancement beyond that baseline. In short, Section 230 provides that websites aren’t liable for third-party content. That protection has been upheld in multiple court cases that have held that a platform is protected “when they decide to terminate someone’s account or downgrade or remove their content.”
Given that Justice Thomas’s comments were limited to a concurrence (that is to say, they do not represent a binding majority opinion of the Supreme Court) why are they significant? Goldman lays out his analysis of this question in three parts. First, although it’s not a majority opinion, it holds value as an opinion that future litigants will cite to as persuasive support for their views on the First Amendment and Section 230. Secondly, Goldman believes that “we are going to see more appeals of cases involving Section 230 with regard to account terminations or removals” because the litigants will already know that they have one vote in favor of the plaintiff challenging the removal of their content from a platform. The third reason is that “there is already a fire burning throughout the country by conservatives who feel the need to legislatively intervene. Now they have Justice Thomas at their back from the Supreme Court; one of the nine Supreme Courts Justices saying ‘go at it!’”
Setting Section 230 aside and focusing squarely on the First Amendment, the central issue in these “deplatforming” analyses is whether these companies are “publishers or platforms.” If they are publishers, according to Goldman, “we know that the First Amendment is going to provide 100% protection against government incursions against their discretion” to remove content they find objectionable. “We can’t let things like ‘Common Carriage’ or ‘Places of Public Accommodation' override the interests of media companies and protecting their editorial voice. So the underlying question here is really whether we think of what Justice Thomas calls ‘digital platforms’ as media companies.”
Hurwitz’s take was also pessimistic; “my worry is that Justice Thomas is at the vanguard of a greater ‘First Amendment-minamalist’ strain of thinking that could dial back a lot of traditional First Amendment protections that apply to the media.” Goldman agreed:
“I do think that the First Amendment is under extraordinary pressure - that certainly some segments of our country simply don’t embrace the First Amendment the way that I do, and I think the way that many people use to.That should be chilling to all media enterprises, not just internet services.
We really ought to be asking the question as a country, ‘Why would we curtail the First Amendment, and who wins if we cut it back? (...) Because the reality is, the point of the First Amendment is to protect against government incursions in our ability to talk to each other. So if the government clips back the wings of the First Amendment, the government wins in that situation. And we should ask what they’re going to do with that newfound power."
Hurwitz and Goldman also discuss a consequential/disturbing line of thinking, expressed in a number of new bills before state legislatures, that argue that states should be able to lead the way on these issues and develop their own parameters of free speech, separate and apart from those guaranteed by the United States constitution. Hurwitz characterized this argument as “intellectually fascinating, though in many ways horrific.” The question, as characterized by Hurwitz, is one of “the scope of the First Amendment vis-a-vis States rights under the 9th and 10th Amendments. If States say, ‘in our state these are the rights of free speech, and it’s narrower than what Section 230 would allow,” then under this argument, the state’s perspective would prevail. Goldman notes that this amounts to states “trying to create their own ‘Texas version’ or ‘Nebraska version’ or ‘California version’ of the internet.”
By and large, these bills provide that, if you are a large internet platform, then you “cannot remove your users or remove their content unless they engage in unlawful activity or unless the constitution and the First Amendment would permit you to do so.” Here we should note for non-lawyers that the constitution treats state actors and non-state actors differently when it comes to speech. As Goldman correctly notes, these bills would effectively treat internet platforms as state actors - the implicit argument being that these platforms are so large that they are effectively like the government or a public square, and we are going to treat them as such.
Finally, there is some language in Justice Thomas’s opinion where he opines on the implications of technological change and the applicability of old statutes to new circumstances that have arisen as a result of the emergence of new technology. For Goldman, there is not one answer to these questions; “sometimes old laws apply verbatim without further modification and in other cases, absolutely, there’s something new, unique, special, or different about the technology that requires custom crafting of laws, or even better yet, maybe deference to the technological evolution and not clipping its wings with legal regulation, and section 230 is a great example.”
In sum, I think many of us will continue to watch with a mix of horror and fascination at where these efforts lead in the coming months. On that topic, I’ll leave you with this great reflection from Goldman:
The jurisprudence of the court) is filled with statements that say the internet is unique, special and different. There’s something unique here, and we need to make sure we’re preserving that.