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Fact check: Justice Clarence Thomas didn't say Section 230 is unconstitutional

USA TODAY logo USA TODAY 4/9/2021 Rick Rouan, USA TODAY
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The claim: Supreme Court Justice Clarence Thomas found that social media companies do not have a First Amendment right to ban protected speech and that Section 230 of the Communications Decency Act is unconstitutional

Clarence Thomas wearing a suit and tie: Supreme Court Justice Clarence Thomas delivers a keynote speech during a dedication of Georgia new Nathan Deal Judicial Center Tuesday, Feb. 11, 2020, in Atlanta. The center is named for a former governor and is the first state building in the history of Georgia that is devoted entirely to the judiciary. (AP Photo/John Amis) ORG XMIT: GAJA102 © John Amis, AP Supreme Court Justice Clarence Thomas delivers a keynote speech during a dedication of Georgia new Nathan Deal Judicial Center Tuesday, Feb. 11, 2020, in Atlanta. The center is named for a former governor and is the first state building in the history of Georgia that is devoted entirely to the judiciary. (AP Photo/John Amis) ORG XMIT: GAJA102

Supreme Court Justice Clarence Thomas made waves this week when he wrote about a federal law that allows internet companies to moderate content on their platforms while shielding them from lawsuits.

In a 12-page concurring opinion on the court’s dismissal of a case alleging then-President Donald Trump violated the First Amendment by blocking Twitter users, Thomas wrote of the “enormous control over speech” that large social media platforms hold. He compared them to communications utilities regulated by the government.

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Thomas wrote that Congress has given digital platforms some legal protection related to the content they distribute, “but it has not imposed corresponding responsibilities.”

Under Section 230 of the Communications Decency Act, internet companies can moderate content on their platforms but are shielded from liability for content their users produce.

Some social media posts, though, characterized Thomas’ opinion in stronger terms, saying that he had determined social media companies are not protected by the First Amendment in banning some speech and that Section 230 is unconstitutional.

“BREAKING: Supreme Court Justice Clarence Thomas finds social media companies do not have First Amendment right to ban protected speech and that Section 230 is unconstitutional,” conservative figure Jack Posobiec posted on Twitter shortly after the opinion was released on April 5.

That language was used verbatim in a Facebook post by Students for Trump founder Ryan Fournier.

Thomas was not joined by any of the court's eight other justices in the concurring opinion which carries no precedential weight.

Legal and policy experts who reviewed the opinion said in interviews with USA TODAY that Posobiec's and Fournier’s posts mischaracterized what Thomas wrote.

“I do not think that characterization is accurate, and I don’t think that is what Thomas is saying,” said professor Erwin Chemerinsky, dean of Berkeley Law.

Posobiec and Fournier could not be reached for comment.

What is Section 230?

Section 230 protects internet companies from liability when they transmit or remove user-generated content, with some exceptions. Its history stretches back to the early days of the internet.

In 1996, Congress passed the Communications Decency Act. Section 230 of that legislation was in part a response to a New York state trial court’s decision to hold an early online service provider liable for statements a user posted about the Stratton-Oakmont investment firm, according to a Congressional Research Service report.

The decision hinged on the service provider exercising editorial control over content on its website.

Lawmakers at the time argued that “they wanted to allow online service providers, working with concerned parents and others, to be able to take down offensive content without exposing themselves to liability,” according to the report.

The report points out that some have credited Section 230 with development of the modern internet.

But the rise of social media has fueled calls for change to the 25-year-old law, with some saying it gives too much power to social media companies to censor political views and others claiming those companies don’t do enough to stop the spread of misinformation.

What did Justice Thomas say?

Thomas wrote in his opinion in the case of Trump blocking Twitter users from following him that “the disparity between Twitter’s control and Mr. Trump’s control is stark.” Twitter permanently suspended Trump’s account after the Jan. 6 Capitol riot “due to the risk of further incitement of violence.”

While Trump blocked several people, Twitter barred all users from his messages when it banned him from the platform, Thomas wrote.

“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties,” Thomas wrote.

Thomas compares social media and other internet companies to utilities acting as “common carriers” or places of public accommodation, and lays out the potential for them being subjected to special regulations that would require them to allow everyone to access their services. 

But legal and policy experts who reviewed the opinion pointed out in interviews with USA TODAY that such companies aren’t treated that way now.

“He doesn’t say it’s unconstitutional,” said Mark MacCarthy, nonresident senior fellow in governance studies at the Brookings Institution. “He says it might be unconstitutional if it were invoked to pre-empt a state law that gives users rights to be carried on social media.”

Kendra Albert, clinical instructor at Harvard Law School’s Cyberlaw Clinic, said that Thomas’ opinion lays out “a series of hypotheticals” that could lead to a constitutional challenge but that it doesn’t expressly say that the law is unconstitutional.

Thomas could not be reached for comment. Last year, Thomas said lower courts interpreting Section 230 have given internet companies “sweeping protections” not intended by the statute

Our rating: False

The claim that Justice Clarence Thomas found that social media companies do not have a First Amendment right to ban protected speech and that Section 230 of the Communications Decency Act is unconstitutional is FALSE, based on our research. Thomas was alone in his concurring opinion in the case, which was about Donald Trump blocking Twitter followers, not the rights of social media companies. Legal and policy experts who reviewed the opinion said Thomas did not reach the conclusion stated in the claim.

Our fact-check sources:

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Our fact check work is supported in part by a grant from Facebook.

This article originally appeared on USA TODAY: Fact check: Justice Clarence Thomas didn't say Section 230 is unconstitutional

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