THE United States Supreme Court has vacated a 2019 decision of the 2nd Circuit Court of Appeals that Donald Trump had violated the Constitution by blocking critics on Twitter. The briefly upheld argument was that tweets authored by the nation’s highest elected official were – for all intents and purposes – state forums where citizens were entitled to speak. By ordering the lower court to erase its ruling as “moot” because Trump is no longer President, the earlier judgement for the plaintiffs can have no force as precedent in that jurisdiction. The precisely identical dispute can still return to the Supreme Court but only in the unlikely event that Joe Biden’s tumbleweed account becomes the rollicking and contested place to be for warriors of the ratio.
Trump was famously banned from Twitter on 8 January on the false pretext that he ‘incited’ an ‘insurrection’ at the Capitol two days before. In fact, Democrat Party loyalist Jack Dorsey simply believed Trump was no longer the platform cash and click cow he had been prior to the election (certainly wrong) and would continue as the exiled man in the middle of politics if he wasn’t silenced (certainly right). It isn’t the unremarkable binning of jurisprudence overtaken by events that’s headlining, however, but the concurrence submitted alongside the decision proper by Clarence Thomas. Justice Thomas argues that the instruments of contemporary communication – meaning Google, Facebook and Twitter – should now be regulated like utilities.*
Only Thomas wrote a concurrence. It isn’t known how many on the bench agree with his views or under what circumstances. Not everything about his reasoning – or this highly politicised subject – is simple. For example, the Court of Appeals ruling was put aside on a technicality; the proposition that the Twitter account of the President is indeed an open forum might have had embarrassment value when Trump was in office but now that he’s not, the campaigners who brought the case were potential begetters of a stare decisis landmark that would also have ended private executive power to censor conservatives. If my reading of that happenstance-that-wasn’t is right – and if even a few other Supremes are of the same mind as Justice Thomas – I’m not convinced by John Blackman’s assertion at Reason that mooting this case gives Biden a “clean slate with respect to social media policies.” The Oval Office does not control the slate.
Neither does the Supreme Court itself – which, in any case, is not in the while-we’re-at-it habit of creating constitutional doctrine on an obiter dicta whim. Following convention (cf. Munsingwear), the court has done the next best thing for future litigants: neither entrenching nor repudiating the lower court’s logic. The obvious question now is this: who will bring a comparable action requiring resolution and when? Democrat partisans are on record – erased this time but not forgotten – of opposing authorial control of speech on social media while cheering managerial cancellations. At law – when it comes to that – their goal will be to socialise the mobbing and privatise the banning. That’s the cannot-lose luxury of having militant, woke allies running Big Tech. The Thomas thesis gives small-d democrats hope that this racket may not be as unbreakable as it seems. One note of caution suggests itself even so: if a state should regulate social media as utilities, how likely is it they will become more free?