with Aaron Schaffer

Supreme Court Justice Clarence Thomas criticized the powerful grip social media companies have over online speech, in a blistering opinion where he effectively invited lawmakers to regulate tech companies like utilities and force them to host all users.  

Thomas’s opinion was published as the court vacated a lower-court opinion that said former president Donald Trump could not block critics from his Twitter feed. The court decided the case was moot because he lost reelection and was banned from major social networks after the violent attacks on the Capitol, as my colleague Robert Barnes reported.  

Thomas wrote that the plaintiffs, advocates for free speech online who sought to force Trump from blocking individuals, have a point when they say that “some aspects of Trump’s account resemble a constitutionally protected public forum.” But then he noted there was a stark difference between the amount of power Trump and Twitter had over online discussion, as the company retains the right to suspend anyone from its platform for any reason even if they’re president of the United States. 

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

The opinion suggests that conservatives long critical of tech giants have an ally on the Supreme Court bench. 

Thomas drew an analogy between tech platforms and “common carriers,” such as phone companies, that face specific regulations because of the essential nature of the services they offer. He argues that these businesses are unique because they do not maintain the “right to exclude,” and suggested tech companies should have to play by the same rules. 

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.

None of the other conservative justices joined Thomas in his argument, and it’s highly unlikely that Congress would make the changes he’s suggesting especially while Democrats control both chambers and the White House. 

But it reflects a growing conservative movement to rein in the tech industry’s power, and Thomas's views could have implications for tech companies in lower courts controlled by conservatives, state legislatures and eventually in Washington whenever Republicans do regain power. 

It's not the first time that Thomas has waded into the debate over how to regulate the tech industry. Last year, he said the court should weigh in on Section 230, a decades-old law that protects tech companies from lawsuits for the decisions they make about content on their sites. Thomas argued the statute has previously been interpreted too broadly by the courts. 

Legal and tech experts studying online speech immediately took issue with Thomas’s arguments. 

They warned that regulating tech platforms like utilities would significantly hamper their ability to limit accounts spreading extremism, harassment and even spam. 

Thomas “is definitely going to love an internet flooded with porn ads and fake Ray-Bans after he declares social media platforms to be common carriers,” tweeted Alex Stamos, a former Facebook chief security officer who is now director of the Stanford Internet Observatory. 

Twitter declined to comment. The Internet Association, which represents social media companies, pushed back on the opinion. 

“Online services bear no resemblance to other common carriers which is why the First Amendment applies fully,” Christina Martin, Internet Association senior vice president for global communications and public affairs, said in a statement. "Internet companies are clearly operating within their rights to remove harmful content.” 

And Daphne Keller, director of platform regulation at the Stanford Cyber Policy Center:

Yet some politicians publicly took aim at Thomas. From Rep. Ted Lieu (D-Calif.):

Thomas’s argument came on a big day for Silicon Valley in front of the court. 

Meanwhile, tech companies and software developers were celebrating the court's ruling in favor of Google in its decade-long legal battle with Oracle, as my colleagues Robert and Gerrit De Vynck report. The court determined that Google did not violate copyright law when it developed its Android mobile operating system using code from Oracle. The ruling will save Google billions of dollars, and also have major implications for how software is developed moving forward. 

Even some of Google's top critics praised the decision, warning a ruling in favor of Oracle could significantly curtail the way software is built and functions today.

From David Heinemeier Hansson, the creator of Ruby on Rails and founder of Basecamp who has recently challenged large tech companies' power:

Rant and rave

Steven Mazie, the Economist's Supreme Court correspondent, had this takeaway from Thomas's opinions:

We're bookmarking this tweet from computer science researcher Matt Blazer:

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Facebook's hiring system hurts people of color, undermining company diversity goals, a former recruiter says. 

A former recruiter at the company, Rhett Lindsey, also described interview and selection processes that frequently deemed candidates of color as people who would not fit within the company’s culture, Elizabeth Dwoskin and Nitasha Tiku report. The accusations add to the claims of hiring bias at Facebook as the company faces a federal Equal Employment Opportunity Commission investigation. 

“There is no culture fit check mark on an application form, but at Facebook it is like this invisible cloud that hangs over candidates of color,” said Lindsey, who added that at least a dozen qualified candidates of color that he referred for interviews were also rejected by Facebook. “It really boils down to who do I feel comfortable hanging out with.”

At a meeting Lindsey attended in August 2020 about hiring more Black engineers, a White manager played a Drake song in the background that repeats the phrase “Where the [n-word]s be at?," five times, per videos of the incident reviewed by The Washington Post. Lindsey said the music showed a lack of awareness, and a manager later apologized. 

Facebook spokesman Andy Stone said the company’s recruiters do not assess cultural fit, but the company analyzes whether interviewees’ skills and behaviors in the recruiting process align with company values. He did not address the incident with the Drake song.

The National Labor Relations Board plans to file a complaint against Amazon if it doesn’t settle with two critics.

A lawyer for the agency told fired workers Emily Cunningham and Maren Costa that it will issue a complaint accusing the company of violating a section of the law that bars it from interfering with employee rights to engage in “concerted activities” if the company doesn’t settle the case, Jay Greene reports. Amazon's labor record is in the spotlight as it fights a unionization drive in Bessemer, Ala., which is also the site of complaints about working conditions.

(Amazon chief executive Jeff Bezos owns The Washington Post.)

Amazon spokesman Jose Negrete said that Cunningham and Costa were fired for “repeatedly violating internal policies,” and that the company supports “every employee’s right to criticize their employer’s working conditions.” According to Cunningham, the NLRB’s move “shows that we’re not only on the right side of history but the right side of the law, too.”

Ireland’s data regulator is looking into a leak of 533 million Facebook user records.

Facebook says the “old” data was taken before the company resolved a vulnerability in 2019, Hannah Knowles reports. But Ireland’s Data Protection Commission says it wants to make sure that's the case, escalating years-long regulatory scrutiny of the company's privacy practices, the BBC's Joe Tidy reports.

Graham Doyle, the DPC’s deputy commissioner, said the data “appears to be” from the previously reported leak, and that it appears that the data was taken before a strict European data protection law came into effect. “However, following this weekend's media reporting we are examining the matter to establish whether the data set referred to is indeed the same as that reported in 2019,” he said.

Hill happenings

Democratic lawmakers pressed Facebook for answers about a version of Instagram that it’s building for children.

Two senators and two of their House colleagues sent Facebook CEO Mark Zuckerberg 14 questions about the platform, which is in development, and largely focused on content moderation, data practices, privacy and potential harms the platform could have on children. The letter comes weeks after Zuckerberg acknowledged that the company was building the app for children when he testified before Congress. 

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  • Google executive Karan Bhatia speaks at an event hosted by the Center for Strategic and International Studies on Friday at 10 a.m. 

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