Justice Thomas suggests regulating tech platforms like utilities


Associate Justice Clarence Thomas poses for the official group photo at the US Supreme Court in Washington, DC on November 30, 2018.Mandel Ngan | AFP | Getty Images

Justice Clarence Thomas suggested Monday that tech platforms could be regulated like utilities in what would be a major shift for services such as Facebook, Google and Twitter.

Thomas, one of the Supreme Court’s most conservative voices, made his point in a concurrence submitted alongside a decision to vacate a lower court’s ruling involving former President Donald Trump’s Twitter account.

“There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner,” Thomas wrote.

Regulating online platforms like utilities would require fundamental changes to how tech platforms operate. Depending on the specific contours of such regulation, social media sites could be forced to alter or do away with many of the moderation standards they use to keep harassment, hate speech and nudity off their platforms. That’s the opposite of what many Democrats have been fighting for, which is more liability for platforms that host certain types of objectionable or illegal content.

Twitter and Trump

The decision erased a federal appeals court ruling that Trump had violated the Constitution by blocking his critics from his Twitter account. The lower court had said Trump’s move effectively excluded citizens from viewing a public forum, in violation of their First Amendment rights.

The Supreme Court ordered the lower court to dismiss the case as moot now that Trump is no longer president. The action prevents the federal appeals court decision from serving as precedent for future cases.

Thomas’ concurrence signals the justice would be open to arguments that could require a fundamental change to how tech platforms function.

While he agreed that Trump’s Twitter account did “resemble a constitutionally protected public forum” in some respects, “it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” he said, referencing Twitter’s decision to remove Trump’s account from the platform following the Jan. 6 insurrection at the U.S. Capitol.

“Any control Mr.