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Justice Thomas argues for making Facebook, Twitter and Google utilities

Thomas argues that some digital platforms are "sufficiently akin" to common carriers like telephone companies.

Justice Thomas argues for making Facebook, Twitter and Google utilities

Justice Thomas argues that Twitter's recent ban of the @realdonaldtrump account suggests that it's platforms themselves, not the government officials on them, that hold all the power.

Photographer: Al Drago/Bloomberg via Getty Images

Last fall, Justice Clarence Thomas argued that it was time to rein in Section 230 immunity. Now, Justice Thomas is laying out an argument for why companies like Facebook, Twitter and Google should be regulated as utilities.


On Monday, the Supreme Court vacated a lower court ruling in finding that President Trump had acted unconstitutionally by blocking people on Twitter. That case, which the justices deemed moot, hinged on the idea that the @realdonaldtrump account was a public forum run by the president of the United States, and therefore, was constitutionally prohibited from stifling private speech. In his concurrence, Justice Thomas agrees with the decision, but argues that, in fact, Twitter's recent ban of the @realdonaldtrump account suggests that it's platforms themselves, not the government officials on them, that hold all the power.

"As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms," Thomas writes. "The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions."

Thomas argues that some digital platforms are "sufficiently akin" to common carriers like telephone companies. "A traditional telephone company laid physical wires to create a network connecting people," Thomas writes. "Digital platforms lay information infrastructure that can be controlled in much the same way."

Thomas argues that while private companies aren't subject to the First Amendment, common carriers are unique to other private businesses in that they do not have the "right to exclude." Thomas suggests that large tech platforms with substantial market power should be bound by the same restrictions. "If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform's right to exclude," Thomas writes.

Such a restriction would substantially curb tech giants' ability to moderate content, a proposal that both tech giants and those on the left who want to see more aggressive content moderation online would almost certainly reject.

Thomas goes on to describe the sheer scope of Facebook and Google's market power, citing Facebook's roughly 3 billion users and Google's 90% market share in search. "It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail," Thomas writes. "But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today's digital platforms, nothing is."

Thomas states that in order for an account like @realdonaldtrump to be truly classified as government controlled, "the power of a platform to unilaterally remove a government account" would have to be "reduced."

Thomas acknowledges that it would be up to "a legislature" to impose such a restriction and that the Twitter blocking case before the court didn't offer an opportunity to grapple with those questions. But, he writes, "We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms."

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Plus, what we learned from Big Tech's big quarter.

Image: Roblox

On this episode of the Source Code podcast: First, a few takeaways from another blockbuster quarter in the tech industry. Then, Janko Roettgers joins the show to discuss Big Tech's obsession with the metaverse and the platform war that seems inevitable. Finally, Ben Pimentel talks about Robinhood's IPO, and the company's crazy route to the public markets.

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David Pierce ( @pierce) is Protocol's editor at large. Prior to joining Protocol, he was a columnist at The Wall Street Journal, a senior writer with Wired, and deputy editor at The Verge. He owns all the phones.

After a year and a half of living and working through a pandemic, it's no surprise that employees are sending out stress signals at record rates. According to a 2021 study by Indeed, 52% of employees today say they feel burnt out. Over half of employees report working longer hours, and a quarter say they're unable to unplug from work.

The continued swell of reported burnout is a concerning trend for employers everywhere. Not only does it harm mental health and well-being, but it can also impact absenteeism, employee retention and — between the drain on morale and high turnover — your company culture.

Crisis management is one thing, but how do you permanently lower the temperature so your teams can recover sustainably? Companies around the world are now taking larger steps to curb burnout, with industry leaders like LinkedIn, Hootsuite and Bumble shutting down their offices for a full week to allow all employees extra time off. The CEO of Okta, worried about burnout, asked all employees to email him their vacation plans in 2021.

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Facebook is looking to make posts disappear, Google wants to make traffic reports more accurate, and more patents from Big Tech.

Facebook has ephemeral posts on its mind.

Image: Protocol

Welcome to another week of Big Tech patents. Google wants to make traffic reports more accurate, Amazon wants to make voice assistants more intelligent, Microsoft wants to make scheduling meetings more convenient, and a ton more.

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Karyne Levy

Karyne Levy ( @karynelevy) is the West Coast editor at Protocol. Before joining Protocol, Karyne was a senior producer at Scribd, helping to create the original content program. Prior to that she was an assigning editor at NerdWallet, a senior tech editor at Business Insider, and the assistant managing editor at CNET, where she also hosted Rumor Has It for CNET TV. She lives outside San Francisco with her wife, son and lots of pets.

Protocol | China

China’s edtech crackdown isn’t what you think. Here’s why.

It's part of an attempt to fix education inequality and address a looming demographic crisis.

In the past decade, China's private tutoring market has expanded rapidly as it's been digitized and bolstered by capital.

Photo: Getty Images

Beijing's strike against the private tutoring and ed tech industry has rattled the market and led observers to try to answer one big question: What is Beijing trying to achieve?

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It’s soul-destroying and it uses DRM, therefore Peloton is tech

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Is this tech? Or is it just a bike with a screen?

Image: Peloton and Protocol

One of the breakout hits from the pandemic, besides Taylor Swift's "Folklore," has been Peloton. With upwards of 5.4 million members as of March and nearly $1.3 billion in revenue that quarter, a lot of people are turning in their gym memberships for a bike or a treadmill and a slick-looking app.

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Karyne Levy

Karyne Levy ( @karynelevy) is the West Coast editor at Protocol. Before joining Protocol, Karyne was a senior producer at Scribd, helping to create the original content program. Prior to that she was an assigning editor at NerdWallet, a senior tech editor at Business Insider, and the assistant managing editor at CNET, where she also hosted Rumor Has It for CNET TV. She lives outside San Francisco with her wife, son and lots of pets.

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