Justice Clarence Thomas, in what is perhaps the most important decision regarding First Amendment protections on social media platforms to date, issued a concurring statement that criticized the broad power over free speech held by tech companies. Thomas also called for reform of Section 230 of the Communications Decency Act.
Section 230 reform is something that has long been discussed by Republican voters, though the political class has largely failed to follow through. Given the situation, this statement by Clarence Thomas is monumental to say the least. It is without doubt the most forceful and tangible notice given to big tech monopolies yet.
The concurring opinion was written about the case Joseph R. Biden, Jr., President of the United States, et al., Petitioners vs. Knight First Amendment Institute at Columbia University, et al.. The case pertains to the right of an elected official (President Trump in this instance) to block people on Twitter. The court actually dismissed the case as moot, since President Trump is no longer on Twitter.
Justice Thomas’s concurring statement — a statement where a justice agrees with the majority opinion for different reasons — goes much further. It attacks the protections big tech receives and frequently abuse, calling the “concentrated control of so much speech in the hands of a few private parties”, unprecedented. “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms” he continued.
Thomas goes on to note that common law has often required some services to ‘serve all comers’, regulations which make those businesses something called ‘common carriers’.
Thomas argues that the precedent for such restrictions on services are justified when “a business, by circumstances and its nature, . . . rise[s] from private to be of public concern’” (German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 411 (1914)). Furthermore, there is precedent for regulating communications networks in this way, citing Primrose v. Western Union Telegraph Co., a case in which telegraph companies were “bound to serve all customers alike, without discrimination.’” Justice Thomas further argued that the government has limited companies’ right to refuse if they claim to be public utilities.
The Justice then cut to the heart of the issue. “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.”
He noted the similarities between the function of telegraph companies and that of a modern social media company. In terms of impact on communication for their respective time periods, the similarities were striking. Justice Thomas argues that “unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot ‘be treated as the publisher or speaker’ of information that they merely distribute.”
Twitter of course, frequently does not adhere to these standards.
Clarence Thomas then goes on to further compare platforms such as Twitter, Google, and Facebook to companies historically subject to common carrier restrictions. Given the concentration of power over speech centered in a small group of people, this has often meant liberal activists.
The Justice then attacks big tech from another angle, bringing up how the companies in focus can and often do throttle certain types of content. “When a user does not already know exactly where to find something on the Internet… Google is the gatekeeper between that user and the speech of others… It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results,” read the statement.
Thomas then cited a study from the Wall Street Journal and went on to talk about how Facebook and Twitter routinely throttle users with conservative opinions. He also mentioned how Amazon removes controversial items, specifically books.
He believes that this is a violation of the common carrier regulations, which in the opinion of he and many other Americans, these companies should have. More importantly, he goes after the oligopoly of big tech itself.
“A person always could choose to avoid the toll bridge or train and in-stead swim the Charles River or hike the Oregon Trail. 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.”
He then calls for laws restricting the right of social media monopolies to refuse, something which would guarantee conservative safety on the platforms for the foreseeable future.
Even if they’re not close enough to common carriers for those laws to apply to them, Justice Thomas argues that they still ought to be regulated like public utilities, citing several court cases as precedent.
Then, in the coup de grace of his statement, Justice Thomas called on Republican lawmakers to act. “The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms.”
For Republicans — who have been increasingly censored from major internet platforms in recent years — this statement from the great Clarence Thomas was sorely needed. It provides some precedent for legislation reigning in big tech, and the legal arguments to match. With this statement, we have a Supreme Court Justice saying that the platforms are ours, so long as we are brave enough to pass laws enforcing this.