April 7, 2021

Clarence Thomas Takes on Big Tech

The Supreme Court justice indicates that it’s time for the courts to weigh in on Big Tech’s abuse of free speech.

A case regarding President Donald Trump’s Twitter account made it to the Supreme Court, where Justice Clarence Thomas wrote in his concurring opinion, “As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. 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.” Therefore, he suggested, it’s likely time to start regulating Big Tech companies as public utilities.

Thomas observed that designating major social media companies as both “common carries” and as “places of public accommodation” would effectively limit the ability of these companies to infringe on free speech. He explained, “Even if digital platforms are not close enough to common carriers, legislatures might still be able to treat digital platforms like places of public accommodation.”

Mike Davis, founder of the Internet Accountability Project, welcomed Thomas’s opinion. “Justice Thomas is right,” he said. “Big Tech’s massive power to deliver and control the information flow in America gives it ‘common carrier’ status. [Big Tech companies] have a different responsibility than other companies — the responsibility to avoid viewpoint discrimination and to protect the free-speech rights of [their] users.”

Beyond this, the courts might weigh in on Section 230 of the Communications Act, the statute that Big Tech companies have repeatedly appealed to when justifying their abusive censorship practices. “Threats directed at digital platforms can be especially problematic in the light of [Section 230], which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content,” Thomas said. “This immunity eliminates the biggest deterrent — a private lawsuit — against caving to an unconstitutional government threat.”

UCLA legal scholar Eugene Volokh surmises, “If I had to bet money, I would guess the courts would say Section 230 simply protects platforms’ right to exclude people from their property.” As Thomas put it, Big Tech may face “laws that restrict the platform’s right to exclude.”

Thomas concluded, “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.” The issue has only grown more important with Big Tech’s increasingly aggressive crackdowns on the speech rights of some Americans, and Thomas’s pointed remarks serve notice that SCOTUS is indeed interested in addressing this issue — and hopefully sooner rather than later.

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