WASHINGTON (CN) — The U.S. Supreme Court on Monday snuffed out a ruling that said Donald Trump violated the First Amendment as president when he blocked users from interacting with his Twitter account.
Though the court vacated the decision summarily, averting oral arguments now that Trump's ban from Twitter has mooted the case,Justice Clarence Thomas penned a concurring opinion to expand on the power and reach of Twitter and other social media companies.
Noting that Trump’s Twitter account had appeared much like a government-run public forum, thus qualifying as constitutionally protected, Thomas wrote it was odd that such a forum could be completely elimated through solely that private company’s authority.
Twitter permanently suspended Trump from the site in January after his presidential term ended and his supporters stormed the U.S. Capitol building.
“Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service to remove the account ‘at any time for any or no reason,’” Thomas wrote. “Twitter exercised its authority to do exactly that. Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents’ complaint of stifled speech.”
Expanding upon that reasoning, Thomas offered a hypothetical: if a government agency leases a hotel conference room for a public hearing, it can’t kick people out of that room because they express concern with the at-issue law or regulation being proposed. That’s because the hotel room is leased, and therefore controlled, by the government.
But if government officials informally gather in a hotel bar with constituents, they can ask the hotel to remove a patron who disrupts that conversation with opposing views — as the space in that instance is controlled by the hotel, not the government.
If private, concentrated control over online content and platforms is the issue, Thomas wrote, an expansion of regulating those companies should be examined. Common carrier laws, which subject specific businesses to a general requirement of accepting all customers, could be applied to those types of marketplaces — especially if they have become of particular public interest.
“Internet platforms of course have their own First Amendment interests, but regulations that might affect speech are valid if they would have been permissible at the time of the founding,” Thomas wrote. “The long history in this county and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny — especially where a restriction would not prohibit the company form speaking or force the company to endorse the speech.”
Trump had still been president when last year when he took the case here to the Supreme Court, fighting a Second Circuit decision that said government officials must make themselves open to contentious debate on social media.
Jameel Jaffer, executive director of the Knight First Amendment Institute, the lead challenger in the case, noted disappointment Monday that the court had not left the Second Circuit’s ruling intact.
“While we would have liked the Supreme Court to leave the Second Circuit’s ruling on the books, we’re gratified that the appeals court’s reasoning has already been adopted by other courts and we’re confident it will continue to shape the way that public officials use social media,” Jaffer said in a statement.
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