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Clarence Thomas explains legal basis for reining in Big Tech censorship

‘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.’
Wed Apr 7, 2021 - 4:15 pm EST
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Supreme Court Justice Clarence Thomas

April 7, 2021 (LifeSiteNews) – Government intervention to rein in social media giants’ anti-conservative bias would be well within the historical and legal precedent applied to “common carriers” of communication and transportation services in the United States, US Supreme Court Justice Clarence Thomas wrote Monday in a concurring opinion laying out the most detailed legal framework yet for conservatives seeking a solution to Big Tech.

Biden v. Knight First Amendment Institute concerns Columbia University’s Knight First Amendment Institute suing the Trump administration over former President Donald Trump’s use of Twitter’s Block feature on his personal Twitter account. (President Joe Biden was not involved in the suit; the name on the case automatically changed from Trump to Biden due to the change in administrations.)

In 2019, a 2nd Circuit Court of Appeals panel unanimously ruled that Trump could not do so on the theory that Trump was acting in his official capacity when using the account, and as such his blocking of unwanted readers (an action that any reader can easily circumvent by logging out of the blocked Twitter account) violated their First Amendment right to speak in a public forum.

On Monday, the Supreme Court vacated that ruling and directed the 2nd Circuit to dismiss the case as moot, since Trump is no longer president. Thomas, the Court’s most conservative jurist, took the opportunity to write a concurring opinion on how the case illustrates the challenge of “applying old doctrines to new digital platforms.”

“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” he wrote. “Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. 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.”

“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,” Thomas continued. “Historically, at least two legal doctrines limited a company’s right to exclude.”

The first doctrine, Thomas explained, was the legal obligation of “common carriers” to “serve all comers,” which dates back to the British common law underpinning American law. The most obvious historical examples of such common carriers are transportation companies such as railroads or communications fields such as the telegraph industry.

“In exchange for regulating transportation and communication industries,” he went on, “governments — both State and Federal — have sometimes given common carriers special government favors” such as “immunity from certain types of suits” or “regulations that make it more difficult for other companies to compete with the carrier,” in the process placing these companies “into a category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken.” As many have noted in recent years, social media companies currently enjoy one such favor: Section 230 of the federal Communications Decency Act, which shields platforms against being held liable for content posted by individual users.

The second doctrine is legal limits on a private company’s ability to exclude patrons if that company qualifies as a “public accommodation.”

“Internet platforms of course have their own First Amendment interests,” Thomas noted, “but regulations that might affect speech are valid if they would have been permissible at the time of the founding. The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny — especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech.”

All of this is underscored, he went on, by the “dominant market share” enjoyed by the likes of Facebook and Google, and with that share comes “enormous control over speech.” The existence of far smaller and less influential alternatives to these services “changes nothing,” he added, in the same way that the option to “swim the Charles River or hike the Oregon Trail” would justify deregulating toll bridges or trains. The remedy, then, might be “laws that restrict the platform’s 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 concluded. “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. This petition, unfortunately, affords us no opportunity to confront them.”

Thomas’s opinion has received praise across conservative media, from commentators and activists longing for a course of action against online censorship, as well as disapproval from liberals and their “NeverTrump conservative” allies such as The Dispatch senior editor David French, whose own controversial interpretation of the First Amendment asserts that drag queens must be given space at public libraries for the express purpose of proselytizing gender-fluidity to children.

Justice Thomas previously addressed social media censorship last October, in an opinion that argued the prevailing interpretation of Section 230 is inaccurate, and that it was never intended to “protect any decision to edit or remove content” made by the platforms themselves.


  big tech, clarence thomas, common carriers, free speech, online censorship, section 230, social media, supreme court

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