To defend its social media legislation, Texas resorts to Clarence Thomas ruling

The state’s argument depends in part on an opinion made last year by Justice Clarence Thomas in a case involving Donald Trump and Twitter, as tech organizations seek the US Supreme Court to overturn the new Texas statute prohibiting social media “censorship.”

As we reported at the time, Thomas’ opinion questioned Section 230 legal safeguards for web platforms’ moderation choices, arguing that free-speech legislation shouldn’t preclude Congress from regulating those platforms as common carriers.

“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers,” Thomas wrote. “Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way.” The similarity between online platforms and common carriers.”

The opinion from April 2021 had no immediate practical implications. It was a concurring opinion in a case in which the Supreme Court overturned an appeals court decision from 2019 that stated then-President Donald Trump had violated the First Amendment by banning users on Twitter.

Because Trump was no longer president, the court called the lawsuit “moot.”

However, Thomas’ statement drew attention at the time, and it was highlighted again yesterday in Texas’ reaction to Big Tech’s bid to overturn a state law prohibiting social media corporations from filtering material based on a user’s “viewpoint.”

Texas Attorney General Ken Paxton used the Thomas ruling to argue that social media sites can be regulated as common carriers in Texas.