A Note on Biden v. Knight First Amendment Institute

Biden v. Knight First Amendment Institute is an odd case. First of all, President Joseph Biden is not involved in it; he inherited it from former President Donald Trump. The subject matter of this case might sound familiar: it concerns whether presidents may block people from their personal social media accounts.

A misconception about this case needs to be cleared up before we can proceed: it was from an Appeals Court. The federal court system in the United States is divided into three layers: District Courts, Appeals (or Circuit) Courts, and the Supreme Court. Only the last tier is national and binds state courts. Such is the pace of litigation in the United States, and such the pace of events that this case has outlived the Trump presidency, and has now taken on undertones which no one could have predicted when it was commenced. It was filed in 2017, decided in the District Court in 2018, upheld in the Appeals Court in 2019, and appealed to the Supreme Court in 2020, which declared the case moot (meaning it is too late for any judgment on the issue to be effective) on April 5, 2021.

Like the opinion discussed in A Comment on Malwarebytes v. Enigma, this one is written by Justice Clarence Thomas and joined by no other justice. It continues to point out problems with section 230. What I have said there about that provision applies here too.

Despite its importance to the Internet, section 230 has never been interpreted by the Supreme Court. The reason for that is because it is most frequently invoked in a political context, which was only given a passing mention while it was being passed.

I promised that that compilation would have no comments except editorial ones; I intend to keep that promise, and so I will talk about it here. Section 230 is a rider upon a rider. It was originally proposed as the "Internet Freedom and Family Empowerment Act", and later became the "Cox-Wyden Amendment" to the "Communications Decency Act". The IFFEA protected Internet freedom and the CDA restricted it; both were passed because they were part of the same bill as a popular telecommunications reform bill. The Senate passed the CDA impulsively, while the CDA was never before the House independently; the House voted on it as a part of a conference committee (committee to resolve disagreement between the houses on the text of a bill) substitution that covered all of the bill.

The CDA was struck down in Reno v. ACLU. The late Ruth Bader Ginsberg spoke of it approvingly in that case.

Since then, section 230 has fallen into an abeyance in the jurisprudence of the Supreme Court that is totally out of proportion with its social and economic importance. Justice Clarence Thomas, the one who wrote the opinions here analyzed, occasionally referred to its introductory "Purpose" and "Findings" clauses in interpreting the rest of the Telecommunications Reform Act. But it has not ever been interpreted by the Supreme Court.

Thomas's opinion addresses the contradiction between Trump not being allowed to block detractors' accounts and Twitter being allowed to remove his account at will. He analogizes this to a hotel. A government body that leases a hotel conference room for a public meeting cannot throw out people who express dissent to its announcements, but a group of government officials that informally meet the public in the hotel's bar can ask hotel security to remove unruly people that try to shove their way in to express disagreement. He claims this situation more resembles the latter.

This opinion is divided into Parts I and II. Part I is divided into Sections A and B. Section B is divided into Divisions 1 and 2.

Part I-A enunciates two exceptions to the right of a private company to do what it wants. First is the common carrier exception, where companies engaged in the business of transportation or communication must serve all comers, and in return receive a certain degree of immunity from suit. Second is the public accommodations exception, where businesses, such as hotels, restaurants, and theaters, that serve the public cannot discriminate based on race or color or other protected characteristics, as provided by the Civil Rights Act. Both are founded on the theory that common carriers and public accommodations act as agents of the government in benefiting the public, and are therefore subject to more stringent regulation.

Part I-B-1 declares that Twitter and certain other large corporations, like Facebook, Google, and Amazon, are common carriers based on their dominant market share. It also observes that section 230 allows them to enjoy immunity without imposing corresponding obligations.

Part I-B-2 speculates that the public accommodations exception may also apply to Twitter. But in both cases, Thomas imposes the onus to act on "legislatures", State and Federal, and does not arrogate that to the Supreme Court.

Part II also suggests that Section 230 may itself be unconstitutional because it may restrict states from protecting speech from private censorship. This is a dangerous proposition, as owners of websites serving the United States might soon be subject to fifty different sets of laws instead of them being preempted by the federal Section 230. Thankfully, it is only a suggestion.

In October, I stated that the investiture of Amy Coney Barrett might change things on the Supreme Court. As she hasn't joined Thomas, I believe it has not.

The Supreme Court's consistent unwillingness to interpret Section 230 is an irresponsible act. It negates the advantages of the American federal system by making its meaning vary based on the Federal Circuit one is in. And given the importance Section 230 has assumed lately, it is becoming more and more unjustifiable and inexcusable.