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<\/p>\nSupreme Court Justice Clarence Thomas made waves this week when he wrote about a federal law that allows internet companies to moderate content on their platforms while shielding them from lawsuits.<\/p>\n
In a 12-page concurring opinion on the court\u2019s dismissal of a case alleging\u00a0then-President Donald Trump violated the First Amendment by blocking Twitter users, Thomas wrote of the \u201cenormous control over speech\u201d that large social media platforms hold. He compared them to communications utilities regulated by the government.<\/p>\n
Thomas wrote that Congress has given digital platforms some legal protection related to the content they distribute, \u201cbut it has not imposed corresponding responsibilities.\u201d<\/p>\n
Under Section 230 of the Communications Decency Act, internet companies can moderate content on their platforms but are shielded from liability for content their users produce.<\/p>\n
Some social media posts, though, characterized Thomas\u2019 opinion in stronger terms, saying that he had determined social media companies are not protected by the First Amendment in banning some speech and that Section 230 is unconstitutional.<\/p>\n
\u201cBREAKING: Supreme Court Justice Clarence Thomas finds social media companies do not have First Amendment right to ban protected speech and that Section 230 is unconstitutional,\u201d\u00a0conservative figure Jack Posobiec posted on Twitter shortly after the opinion was released on April 5.<\/p>\n
That language was used verbatim in a Facebook post by Students for Trump founder Ryan Fournier.<\/p>\n
Thomas was\u00a0not joined by any of the court’s eight other justices in the concurring opinion which carries no precedential weight.<\/p>\n
Legal and policy experts who reviewed the opinion said in interviews with USA TODAY that Posobiec’s and Fournier\u2019s posts mischaracterized what Thomas wrote.<\/p>\n
\u201cI do not think that characterization is accurate, and I don\u2019t think that is what Thomas is saying,\u201d said Professor Erwin Chemerinsky, dean of Berkeley Law.<\/p>\n
Posobiec and Fournier could not be reached for comment.<\/p>\n
Section 230 protects internet companies from liability when they transmit or remove user-generated content, with some exceptions. Its history stretches back to the early days of the internet.<\/p>\n
In 1996, Congress passed the Communications Decency Act. Section 230 of that legislation was in part a response to a New York state trial court\u2019s decision to hold an early online service provider liable for statements a user posted about the Stratton-Oakmont investment firm, according to a Congressional Research Service report.<\/p>\n
The decision hinged on the service provider exercising editorial control over content on its website.<\/p>\n
Lawmakers at the time argued that \u201cthey wanted to allow online service providers, working with concerned parents and others, to be able to take down offensive content without exposing themselves to liability,\u201d according to the report.<\/p>\n
The report points out that some have credited Section 230 with development of the modern internet.<\/p>\n
But the rise of social media has fueled calls for change to the 25-year-old law, with some saying it gives too much power to social media companies to censor political views and others claiming those companies don\u2019t do enough to stop the spread of misinformation.<\/p>\n
<\/p>\n
Supreme Court Justice Clarence Thomas delivers a keynote speech during a dedication of Georgia new Nathan Deal Judicial Center Tuesday, Feb. 11, 2020, in Atlanta. (Photo: John Amis, AP)<\/span><\/p>\n Thomas wrote in his opinion in the case of Trump blocking Twitter users from following him that \u201cthe disparity between Twitter\u2019s control and Mr. Trump\u2019s control is stark.\u201d Twitter permanently suspended Trump\u2019s account after the Jan. 6 Capitol riot \u201cdue to the risk of further incitement of violence.\u201d<\/p>\n While Trump blocked several people, Twitter barred all users from his messages when it banned him from the platform, Thomas wrote.<\/p>\n \u201cToday\u2019s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties,\u201d Thomas wrote.<\/p>\n Thomas compares\u00a0social media and other internet companies to utilities acting as \u201ccommon carriers\u201d or places of public accommodation, and lays out the potential for them being subjected to special regulations that would require them to allow everyone to access their services.\u00a0<\/p>\n But legal and policy experts who reviewed the opinion pointed out in interviews with USA TODAY that\u00a0such companies aren\u2019t treated that way now.<\/p>\n \u201cHe doesn\u2019t say it\u2019s unconstitutional,\u201d said Mark MacCarthy, non-resident senior fellow in governance studies at the Brookings Institution. \u201cHe says it might be unconstitutional if it were invoked to pre-empt a state law that gives users rights to be carried on social media.\u201d<\/p>\n Kendra Albert, clinical instructor at Harvard Law School\u2019s Cyberlaw Clinic, said Thomas\u2019 opinion lays out \u201ca series of hypotheticals\u201d that could lead to a constitutional challenge. But it doesn\u2019t expressly say that the law is unconstitutional, they\u00a0said. <\/p>\n Thomas could not be reached for comment. Last year, Thomas said lower courts interpreting\u00a0Section 230 have given internet companies \u201csweeping protections\u201d\u00a0not intended by the statute.\u00a0<\/p>\n The claim that Justice Clarence Thomas found that social media companies do not have a First Amendment right to ban protected speech and that Section 230 of the Communications Decency Act is unconstitutional is FALSE, based on our research. Thomas was alone in his concurring opinion\u00a0in the case, which was about Donald Trump blocking Twitter followers, not the rights of social media companies. Legal and policy experts who reviewed the opinion said Thomas did not reach\u00a0the conclusion stated in the claim.<\/p>\nWhat did Justice\u00a0Thomas say?<\/h2>\n
Our rating: False<\/h2>\n
Our fact-check sources:<\/h2>\n
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