Texas Cites Clarence Thomas to Defend Its Social Media Law

Tech groups are asking the US Supreme Court to block the new Texas law against social media censorship, and the state's defense relies on an opinion issued last year by Justice Clarence Thomas.

We wrote at the time that the Thomas opinion criticized the Section 230 legal protections given to online platforms and argued that free-speech law shouldn't prevent lawmakers from regulating those platforms as common carriers.

Digital platforms that hold themselves out to the public look a lot like traditional carriers. A traditional telephone company built a network. Thomas wrote that the similarity between online platforms and common carriers is even clearer for digital platforms that have dominant market share.

There was no immediate practical impact on the April 2021 opinion. It was a concurring opinion in the case in which the Supreme Court ruled that the appeals court ruling that said Donald Trump violated the First Amendment by blocking people on social media was wrong. The case was declaredmoot because Trump was no longer president.

The Texas response to Big Tech's attempt to block a state law that prohibits social media companies from moderating content based on a user's viewpoint was cited by Thomas.

Texas law declares the platforms are common carriers.

Even if the Hosting Rule implicated the platforms in some way, the Attorney General is still likely to prevail because Texas law says the platforms are common carriers. The State may be able to limit the ability of the platforms to discriminate.

Pointing to historical examples of telegraphs, telephones, and cable operators, Paxton told the Supreme Court that Texas has as compelling an interest in preserving its residents ability to communicate and receive information on the platforms as States had regarding these previous generations of communications technology.

There is little doubt that the platforms resemble historical communications-provider common carriers sufficiently to justify the continued application of these principles, as Justice Thomas explained in the Trump case. The question of whether the platforms possess market power was cited by Thomas again, as well as the statement that the social.

When filing briefs in lower courts, Texas used the concurring opinion from Thomas earlier in the litigation.

Laws in Texas and Florida are not allowed on the First Amendment grounds.

Courts have ruled that the First Amendment does not prohibit websites from limiting speech on their platforms. The Texas law and a similar one in Florida were blocked by federal judges because they violated the First Amendment rights of social media companies. Section 230 of the Communications Decency Act states that online platforms will not be held liable if they restrict access to content they consider objectionable.

The US Court of Appeals for the Fifth Circuit revived the Texas law last week after it was blocked by a US District Court judge. The judges of the Fifth Circuit did not explain why they stayed the preliminary injunction. The Supreme Court was asked to allow Texas to enforce the law while litigation continues.