Clarence Thomas Signals That Supreme Court Might Take On Big Tech Censorship
On Monday, Supreme Court Justice Clarence Thomas criticized the unchecked power of Big Tech, including social media outlets like Twitter and booksellers like Amazon.
Thomas appeared concerned over how much control these outlets have over speech in America.
?Clarence Thomas suggests that social media companies may NOT have a First Amendment right to regulate speech on their platforms, analogizing them to "common carriers" and "places of public accommodation." https://t.co/2zx7nCtIAz pic.twitter.com/ZleTE1aI0S
— Mark Joseph Stern (@mjs_DC) April 5, 2021
Justice Thomas Takes On Big Tech
The Supreme Court Justice’s comments came in the context of a related Supreme Court case concerning former President Donald Trump, who had blocked users on his Twitter account, before Twitter banned him.
SCOTUS decided on Monday that Trump’s blocking was now a moot point because of the ban (and Trump no longer being in office), but Thomas said it still raised important questions about free speech that the court will eventually have to address.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech,” Thomas said.
“Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties,” the justice wrote.
“We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructures such as digital platforms,” Thomas added.
Thomas also noted the need to legally address the control of online content available to the American public.
“If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude,” he wrote.
Thomas worried about the unchecked power of these platforms in the hands of so few.
Thomas: "applying old doctrines to new digital platforms is rarely straightforward… digital platforms provide avenues for historically unprecedented amounts of speech… unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties" pic.twitter.com/PqbW4PZa6F
— Ryan T. Anderson (@RyanTAnd) April 5, 2021
Thomas Worries Major Platforms Like Twitter And Google Can Obstruct Speech
“The question facing the courts below involved only whether a government actor violated the First Amendment by blocking another Twitter user,” Thomas wrote.
He continued, “That issue turns, at least to some degree, on ownership and the right to exclude. The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him.”
“But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves,” Thomas wrote.
Thomas then noted that “interesting and important questions” will likely be raised.
“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” Thomas said.
He wrote, “The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
Thomas then named some major platform names.
Thomas wrote, “Much like with a communications utility, this concentration gives some digital platforms enormous control over speech.”
He continued, “When a user does not already know exactly where to find something on the Internet—and users rarely do— Google is the gatekeeper between that user and the speech of others 90% of the time.”
“It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results,” he added.
Thomas wrote, “Facebook and Twitter can greatly narrow a person’s information flow through similar means.”
Thomas: "In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another." https://t.co/41xQzdbSOW pic.twitter.com/R6ksYG8gxx
— Ryan T. Anderson (@RyanTAnd) April 5, 2021
Thomas also argued that when power becomes this concentrated, even if private, it really is no longer a free market.
“It changes nothing that these platforms are not the sole means for distributing speech or information,” the justice wrote.
“A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail,” he said.
Thomas continued, “But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable.”
“For many of today’s digital platforms, nothing is,” Justice Thomas finished.
Based on Thomas’ comments, there is at least the possibility of the Court taking up such a case, when and if one is presented.
How the Court would rule will be a matter of great speculation going forward.
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