Biden v. Knight First Amendment Institute at Columbia University, No. 20-197 (April 5, 2021).
Former President Trump petitioned the U.S. Supreme Court for certiorari review of a decision of the U.S. Court of Appeals for the Second Circuit which held that his use of his personal Twitter account, @realDonaldTrump for administration messages made the account a public space. As such, the former president could not block others’ or their responses without violating the First Amendment.
In view of the change in presidents, the Supreme Court granted the petition but remanded it to the Second Circuit to vacate its opinion and dismiss the case as moot.
While in agreement with the Court’s determination, Justice Thomas has written separately that subsequent events and a more careful analysis of the balance of powers between digital media platforms and its users calls into question the applicability of First Amendment analysis.
Justice Thomas is of the view that the time has arrived for a close look at digital platforms, particularly where it now appears that extraordinarily broad powers reside in the hands of a few individuals and entities that control the internet.
Twitter banned former President Trump from its platform, which Twitter may do, according to Twitter’s rules of use, for any reason or for no reason. This, in Justice Thomas’ view, highlights how extensive the digital platforms’ powers are. It is less readily apparent that an individual has created a public forum, traditionally defined as a ‘“government controlled” space, when a private individual or entity can unilaterally deny access to its digital platform.
If First Amendment analyses become an uneasy — if not wholly inappropriate — fit in such circumstances, Justice Thomas has suggested that resort to the common law and subsequent developments concerning regulation of common carriers may present opportunities for legislative action. Where common carriers such as communications and transportation entities receive special privileges as a result of government regulation, they also must, as a result, adopt responsibilities, including limitations on a private entitiy’s rights of exclusion such that common carriers must treat clients and customers equally. While market power has traditionally been a part of common carrier analyses, it is not a determining factor: entities of differing sizes and contours may be “common carriers” responsible for transport, whether on highways or rails or telephone wires or otherwise.
This framework, grounded in common carrier constructs as well as civil rights concepts applicable to public accommodations, might offer an opportunity to make inroads in the nation’s understanding of how best to adapt the law to the digital area. Perhaps best of all, Justice Thomas has observed, this approach could aid all concerned without requiring that digital platforms sacrifice their own First Amendment rights or be perceived to have endorsed any of the speech presented on its platforms.
Supreme Court Determination
Second Circuit Decision Regarding Rehearing en banc:
Second Circuit Decision on Appeal:
Opinion of the United States District Court