Dogs and Cats, Living Together! Mass Hysteria!”

In other words, Clarence Thomas is inviting Congress to ban social media companies from engaging in content moderation by stripping them of their own First Amendment rights and transforming them, for legal purposes, into common carriers or public accommodations.

— Mark Joseph Stern (@mjs_DC) April 5, 2021

You know the conservatives who have been arguing—unsuccessfully so far—that social media companies are so powerful that Congress can essentially override their own First Amendment rights and force them to host certain speech on their platforms? Thomas just endorsed that argument. pic.twitter.com/QHhLpZwEF7

— Mark Joseph Stern (@mjs_DC) April 5, 2021

Legal scholars often talk about how fringe constitutional arguments go from "off the wall" to "on the wall." Clarence Thomas just took a huge step toward moving arguments against social media companies' right to engage in content modification "on the wall"—into the mainstream.

— Mark Joseph Stern (@mjs_DC) April 5, 2021

Yeah....probably not:

That Justice Thomas has ... idiosyncratic ... views about the First Amendment is not exactly news.

That none of his conservative colleagues saw fit to join his concurrence in the Twitter case is probably the bigger story, at least for now.

— Steve Vladeck (@steve_vladeck) April 5, 2021

This is the more interesting analysis, anyway.

Here's Clarence Thomas looking to less-than-subtlety reframe the First Amendment into being about power rather than government censorship. pic.twitter.com/TMqW6WHGFR

— Eriq Gardner (@eriqgardner) April 5, 2021

I can see thought leaders in the conservative legal sphere running with this in the next few years... https://t.co/14NLDj0Rkr

— Eriq Gardner (@eriqgardner) April 5, 2021

Probably, but “thought leaders” are currently arguing MLB must lose it’s anti-trust status because of where the All-Star game will be played.  Is that likely to get the Court to revisit it’s MLB anti-trust holdings?  Or get Congress to change the law?  Neither do I think Section 230 is going anywhere.  Repeal it/rule it unconstitutional, those social media platforms shut down instanter.

(Besides, the concept of “common carrier” applies to telephone lines and roadways.  I may have some claim to using telephone service equally with Bill Gates (we can both afford it), but I don’t have a right to go on local TV and say whatever I want (and they get to use the airwaves in so far as they serve the common good, a term more honored in the breach than in the keeping).  Internet access may be a “common carrier” situation, but what I do there is up to me. Twitter is a cable station, an internet accessible service like Amazon Prime or Netflix.  Consider:

Common carriers, classified as public utilities, are available to everyone at a reasonable price and are not originators of messages or content. The communications act thus treated telephone services as a utility providing a network of access to people independent of content.

Not a legal description, nor a statutory one, but one that applies to ISP’s, not to content providers.  Extend that idea to Twitter, and my rating of a movie on Netflix turns that video service into a common carrier.  Why not?  My comment on Netflix is legally indistinguishable from a tweet, unless “common carrier”.is to be decided by quality of content. And I don’t see even a glimmer of a reasonable legal argument that would make that system work, in courts or in Congress (which would ultimately come back to the courts).  This idea shreds the First Amendment, it doesn’t extend it.

Clarence Thomas is the Ted Cruz/Ron Johnson of the Federal bench.