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The legal world is eagerly dissecting the latest court opinion from Justice Clarence Thomas, who indicated the time may be coming when the court could have to start telling services like Facebook, Twitter, and Google what they can and cannot do.

Should Facebook and Twitter be deciding what’s truthful?

Former state Attorney General Rob McKenna joined Seattle’s Morning News to help explain what Justice Thomas said.

“He basically said that the big social media platforms like Twitter have too much power and should be subject to regulation as common carriers, the way the telegraph companies were, beginning in the 1800s, and the way that the telephone companies are,” McKenna said. “He’s saying that the big social media platforms are so important that they should not have that much control over people’s ability to communicate, as was evident from Twitter’s decision to permanently ban Donald Trump from their platform.”

This is a concurrence that Justice Thomas wrote in connection with the Supreme Court’s decision to that former President Trump had violated the First Amendment rights of critical who responded to some of his tweets.

“The court, second Circuit, held he violated their First Amendment rights by blocking them from replying or responding to his posts,” McKenna explained. “And the lower court said Twitter, because it’s being used by the president, is essentially a public forum, and as a public forum, people cannot be excluded. You can’t exclude people from the the town square, so to speak, when it becomes a town square.”

“Justice Thomas concurred in the dismissal of that lower court ruling. The case was mooted when President Trump lost the election and left office,” he continued. “So the Department of Justice moved to dismiss the case where they had been arguing that President Trump had a right to block people from Twitter because it was his personal account.”

Justice Thomas is taking the opportunity to weigh in on the question of whether or not social media companies should be allowed to have this much unregulated power.

“And that’s what has everyone’s attention because they’re wondering whether Section 230 of the Communications Decency Act might be reinterpreted to cause liability for companies that ban people or remove content,” McKenna said. “But I think more than that, because that’s really a minority view that Section 230 can be interpreted that way, I think they see it as an encouragement to legislators in Congress in particular, to start regulating social media platforms as common carriers.”

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