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Josh Hammer / April 9, 2021

Clarence Thomas Shows the Path Forward on Big Tech

We can and must use all tools necessary in our policy and legal arsenal.

A realignment, as many have observed, is now unfolding in American politics. The Republican Party and its conservatism is now the home for the “Somewheres,” to borrow the term from David Goodhart’s 2017 book, “The Road to Somewhere,” which refers to the more traditionalist, hardscrabble patriots of the American heartland. The Democratic Party and its increasingly hard-left progressivism, by contrast, is the home for the “Anywheres” — those highly educated, mobile, “woke” elites comprising the bicoastal ruling class.

The Big Tech issue is the tip of the spear of the realignment. As has been made painfully obvious the last few years, with last October’s collusive Big Tech assault on the New York Post for its election-season reporting on Hunter Biden’s overseas travails serving as an eye-opening pinnacle, Big Tech is now the ruling class’s catspaw. These modern-day robber barons are willing and able to lend their censorious assistance to the ruling class’s ruthless entrenchment of its ideological and political hegemony. Big Tech, in short, is the leading private-sector appendage with which the Anywheres cow into submission and subjugate the Somewheres.

This emergent reality has caused no shortage of heart palpitations among some of the more “liberal” elements of the American conservative firmament. Conservatives, many were taught, stand for unadulterated laissez faire and a staunch commitment to deregulating corporate America. What to do, then, when those unshackled big corporations turn around and come after us?

The answer, for many, has been to carefully reassess what exactly it is we stand for as conservatives — especially as it pertains to unaccountable, concentrated corporate titans who control the 21st-century equivalents of the old public square. To wit, there is nothing particularly “conservative” about a zealous, dogmatic refusal to countenance state actions that might better channel the content curation and moderation decisions of a behemoth such as Amazon — which has at least an 80% market share in digital books — toward the common good of the American polity. Ditto Google, which has a nearly 90% market share in online search.

But the historical bromance between the GOP and chamber of commerce-style corporatism has been an obstinate hindrance to reform. Big Tech-skeptical, pro-realignment conservatives have all too often had their legal and policy arguments on such issues as antitrust enforcement and Section 230 reform thrown back in their faces by doctrinaire, limited-government enthusiasts who insist that True Conservatism is synonymous with hands-off private-sector fundamentalism. “Build your own Google!” the corporatists and libertarians have scowled.

On Monday, the most important conservative lawyer in the nation, Supreme Court Justice Clarence Thomas, came out swinging on the side of the reformers. In his concurrence in Biden v. Knight First Amendment Institute, Thomas opined: “Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.” Later, after a discussion of the centurieslong history of “common carrier” regulation — in modern times, most often applied to transportation networks like rail and communications networks like telephony — and places of “public accommodation,” Thomas wrote: “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.”

Seemingly speaking directly to regulators and legislators at both the federal and state level, Thomas also added, “If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.” Seldom is a Supreme Court justice clearer and more forthright than that. Finally, in a footnote toward the end of his concurrence, Thomas implied that Section 230 immunity may itself be constitutionally problematic and violative of the First Amendment.

With the imprimatur of America’s greatest living conservative — who happens to be one of the greatest Supreme Court justices ever — the path forward for the Big Tech-skeptical right is clear. We can and must use all tools necessary in our policy and legal arsenal to rein in the Big Tech oligarchs before it is too late. Section 230 reform and antitrust enforcement against the most egregious offenders of concentrated power, such as Google and Amazon, are fine places to begin. But as Thomas urges, and as many of us have argued at least since the New York Post hullabaloo last October, we should think even bigger than that. It’s time to get serious about applying “common carrier” regulatory frameworks and/or “public accommodation” Civil Rights Act statutory frameworks, and to reclaim our self-governing democracy from the Silicon Valley technocracy before it is too late.


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