The Fight Over the Legal Status of Digital Platforms

In April 2021, Justice Thomas wrote his concurring opinion in Biden v. Knight First Amendment Institute (opinion at the link), concurring in the decision to vacate as moot the case in which the Second Circuit found a First Amendment violation in President Trump’s blocking some users from his Twitter account. The concurrence provides somewhat of a roadmap for future regulation of digital platforms that at least potentially could pass future court muster.

Law Professor Eugene Volokh at The Volokh Conspiracy: “As I read it, Justice Thomas is not arguing that platforms are already generally common carriers or government actors under existing legal principles; that argument is quite a stretch, and his analysis seems to me to largely reject that argument, except perhaps when the platforms are restricting speech in response to government threats. Rather, he is anticipating what might be done through legislation, and whether new state laws that do treat platforms as common carriers (more or less) are going to be seen as blocked by the First Amendment or 47 U.S.C. § 230. (His analysis of the interests involved may also be relevant to whether such state laws violate the Dormant Commerce Clause.) That’s an issue the Court will likely have to deal with in coming years.”

Professor Volokh published a July 5, 2021 draft (pdf; 79 pages) of his law review article “Social Media Platforms as Common Carriers“. He also has written a series of interesting posts at (collected here) discussing the topic.