Policy

Clarence Thomas wants to check Big Tech. Texas could be his shot.

Thomas has argued social media companies are like common carriers. Texas’s social media law, which could make its way to SCOTUS, makes a similar case.

Justice Clarence Thomas.

Supreme Court Justice Clarence Thomas has been itching for a case that could rein in Section 230.

Photographer: Al Drago/Bloomberg via Getty Images

For years, Supreme Court Justice Clarence Thomas has been openly itching for a case that would give the court an opportunity to rein in Section 230 protections. Now, Texas’ controversial social media “censorship” law could give him an opening.

The Texas law prohibits tech platforms with more than 50 million monthly users from moderating content on the basis of “viewpoint,” an ill-defined concept that is ripe for bad-faith interpretation. On Wednesday, a Fifth Circuit appeals court lifted an injunction on the law, which will now take effect in the state.

Tech giants including Meta, Google, Snap, Twitter, TikTok and others are now scrambling for a legal remedy. None of those companies would share information with Protocol about what happens next. In all likelihood, they’re still figuring it out themselves.

One option on the table, though, would be for the plaintiffs in the case — industry groups NetChoice and the Computer and Communications Industry Association — to try their luck with the Supreme Court. In a statement, CCIA president Matt Schruers said, “No option is off the table.”

For Thomas, at least, such a case might be welcome. He’s argued in the past that tech platforms are "sufficiently akin" to common carriers and that the court will soon have no choice but to “address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms." Thomas’s public turn against tech came shortly after he hired a clerk who was previously a lawyer for noted Sec. 230 critic Sen. Josh Hawley.

"He took the opportunity to rip on Sec. 230 in [a] case that didn’t even present the issue in any way at all. So one that presents the issue, I think he’ll certainly jump on that,” said David Greene, senior staff attorney at the Electronic Frontier Foundation.

It’s possible the Supreme Court could take up the case on its shadow docket, without hearing oral arguments — an outcome University of Texas at Austin law professor Steve Vladeck, who is writing a book on the shadow docket, believes is likely. “I just don’t see how social media companies can risk having this law stay on the books,” Vladeck said. “There will be a ton of pressure to ask the Supreme Court to vacate the stay.” Vladeck pointed to a similar shadow docket decision in March when the Court overturned the Fifth Circuit’s block on the Biden administration’s military vaccine mandate.

Not everyone shares Vladeck’s certainty. According to Corbin Barthold, internet policy counsel for the think tank TechFreedom, “it is still extraordinarily rare for the Supreme Court to review any aspect of an appeal before that appeal is complete.” While the Fifth Circuit lifted the injunction on the Texas law, suggesting it’s likely to uphold the law on appeal, the appeal itself is still pending.

But, Vladeck said, while this has been the case historically, the Supreme Court has become much more active in intervening, particularly in cases that are likely to cause a huge disruption, like this one. “The reality here is that the Fifth Circuit stay is going to create such an immediate impact that it’s going to be hard for the court to think that it's appropriate to wait,” Vladeck said.

Even if the case doesn’t make it to the shadow docket, though, it could still wind its way to the Supreme Court; it’ll just take longer. While NetChoice and CCIA fight it out in the Fifth Circuit, the 11th Circuit is also considering a similar social media law in Florida, and Barthold expects that court to be more deliberate in its decision than the Fifth Circuit was. Being more deliberate than the Fifth Circuit, incidentally, won’t be much of a challenge: The court lifted the injunction on the Texas law just two days after hearing oral arguments, without so much as an opinion. During the arguments, the judges seemed perplexed about whether Twitter is even a website. “To just issue an order like this with no opinion on such an unprecedented law,” Barthold said, “it had a flavor of spite to it.”

If the 11th and Fifth Circuits split, the Supreme Court might take up the case the old-fashioned way, with oral arguments and all. “Then I would flip my whole analysis and say it is likely, even probable, that the Supreme Court would hear that case,” he said.

The question then is, would Thomas’ fellow conservative justices see things the same way he does? That answer is still very unknown. So far, everything Thomas has written on Sec. 230 has only had his name attached.

If history serves, his conservative colleagues would be a hard sell. In 2019, all of the conservative justices, including Thomas, joined Justice Brett Kavanaugh in a decision that found public-access channels can’t violate people’s constitutional rights because, though they provide a public forum for speech, they are not themselves state actors. That makes them seem unlikely candidates to rally behind the Texas law, which would also effectively turn tech platforms into common carriers.

One thing is certain, though. If the Supreme Court were to take up the case in this way, it would take time, maybe even years. In the meantime, tech platforms would have to find a way to live with the Texas law as it is — or die trying.

With additional reporting by Ben Brody.

Fintech

Judge Zia Faruqui is trying to teach you crypto, one ‘SNL’ reference at a time

His decisions on major cryptocurrency cases have quoted "The Big Lebowski," "SNL," and "Dr. Strangelove." That’s because he wants you — yes, you — to read them.

The ways Zia Faruqui (right) has weighed on cases that have come before him can give lawyers clues as to what legal frameworks will pass muster.

Photo: Carolyn Van Houten/The Washington Post via Getty Images

“Cryptocurrency and related software analytics tools are ‘The wave of the future, Dude. One hundred percent electronic.’”

That’s not a quote from "The Big Lebowski" — at least, not directly. It’s a quote from a Washington, D.C., district court memorandum opinion on the role cryptocurrency analytics tools can play in government investigations. The author is Magistrate Judge Zia Faruqui.

Keep Reading Show less
Veronica Irwin

Veronica Irwin (@vronirwin) is a San Francisco-based reporter at Protocol covering fintech. Previously she was at the San Francisco Examiner, covering tech from a hyper-local angle. Before that, her byline was featured in SF Weekly, The Nation, Techworker, Ms. Magazine and The Frisc.

The financial technology transformation is driving competition, creating consumer choice, and shaping the future of finance. Hear from seven fintech leaders who are reshaping the future of finance, and join the inaugural Financial Technology Association Fintech Summit to learn more.

Keep Reading Show less
FTA
The Financial Technology Association (FTA) represents industry leaders shaping the future of finance. We champion the power of technology-centered financial services and advocate for the modernization of financial regulation to support inclusion and responsible innovation.
Enterprise

AWS CEO: The cloud isn’t just about technology

As AWS preps for its annual re:Invent conference, Adam Selipsky talks product strategy, support for hybrid environments, and the value of the cloud in uncertain economic times.

Photo: Noah Berger/Getty Images for Amazon Web Services

AWS is gearing up for re:Invent, its annual cloud computing conference where announcements this year are expected to focus on its end-to-end data strategy and delivering new industry-specific services.

It will be the second re:Invent with CEO Adam Selipsky as leader of the industry’s largest cloud provider after his return last year to AWS from data visualization company Tableau Software.

Keep Reading Show less
Donna Goodison

Donna Goodison (@dgoodison) is Protocol's senior reporter focusing on enterprise infrastructure technology, from the 'Big 3' cloud computing providers to data centers. She previously covered the public cloud at CRN after 15 years as a business reporter for the Boston Herald. Based in Massachusetts, she also has worked as a Boston Globe freelancer, business reporter at the Boston Business Journal and real estate reporter at Banker & Tradesman after toiling at weekly newspapers.

Image: Protocol

We launched Protocol in February 2020 to cover the evolving power center of tech. It is with deep sadness that just under three years later, we are winding down the publication.

As of today, we will not publish any more stories. All of our newsletters, apart from our flagship, Source Code, will no longer be sent. Source Code will be published and sent for the next few weeks, but it will also close down in December.

Keep Reading Show less
Bennett Richardson

Bennett Richardson ( @bennettrich) is the president of Protocol. Prior to joining Protocol in 2019, Bennett was executive director of global strategic partnerships at POLITICO, where he led strategic growth efforts including POLITICO's European expansion in Brussels and POLITICO's creative agency POLITICO Focus during his six years with the company. Prior to POLITICO, Bennett was co-founder and CMO of Hinge, the mobile dating company recently acquired by Match Group. Bennett began his career in digital and social brand marketing working with major brands across tech, energy, and health care at leading marketing and communications agencies including Edelman and GMMB. Bennett is originally from Portland, Maine, and received his bachelor's degree from Colgate University.

Enterprise

Why large enterprises struggle to find suitable platforms for MLops

As companies expand their use of AI beyond running just a few machine learning models, and as larger enterprises go from deploying hundreds of models to thousands and even millions of models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

As companies expand their use of AI beyond running just a few machine learning models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

Photo: artpartner-images via Getty Images

On any given day, Lily AI runs hundreds of machine learning models using computer vision and natural language processing that are customized for its retail and ecommerce clients to make website product recommendations, forecast demand, and plan merchandising. But this spring when the company was in the market for a machine learning operations platform to manage its expanding model roster, it wasn’t easy to find a suitable off-the-shelf system that could handle such a large number of models in deployment while also meeting other criteria.

Some MLops platforms are not well-suited for maintaining even more than 10 machine learning models when it comes to keeping track of data, navigating their user interfaces, or reporting capabilities, Matthew Nokleby, machine learning manager for Lily AI’s product intelligence team, told Protocol earlier this year. “The duct tape starts to show,” he said.

Keep Reading Show less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Latest Stories
Bulletins