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Clarence Thomas sounds alarm over Big Tech power

The Supreme Court vacates a ruling about former President Donald Trump’s Twitter account


Supreme Court Justice Clarence Thomas at the Nathan Deal Judicial Center in Atlanta Associated Press/Photo by John Amis (file)

Clarence Thomas sounds alarm over Big Tech power

Sometimes a concurring opinion in a Supreme Court ruling says more than the main decision. That seemed to be the case Monday when the justices vacated a lower court decision that found former President Donald Trump violated the First Amendment by blocking seven of his critics from viewing or responding to tweets from his @realDonaldTrump Twitter account. In a concurrence, Justice Clarence Thomas laid out the legal challenges posed by Big Tech and free speech.

A lower court concluded the president’s account amounted to a public forum where other users had free speech rights. In a brief, unsigned order, the Supreme Court justices sidestepped the merits and directed the 2nd U.S. Circuit Court of Appeals to dismiss the case as moot because Trump is no longer a public official.

But Thomas wrote a 12-page concurring opinion noting the difficulties of applying traditional legal doctrines to new digital platforms—particularly given states’ attempts to regulate them. Thomas wrote that digital platforms allow an unprecedented amount of speech. “Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties,” he wrote. Social media companies can permanently bar a user, even the president, from the platform.

Big Tech’s power clearly alarms Thomas. He expressed concern about Amazon’s and Google’s ability to harm writers or suppress content through how they organize search results. He mentioned social media platforms, too: “Although both companies are public, one person controls Facebook [CEO Mark Zuckerberg], and just two control Google [Alphabet CEO Larry Page and President Sergey Brin].”

Two long-standing legal doctrines could allow legislators to curb these massive internet companies, Thomas wrote. They could define digital platforms as common carriers—much like airlines—subject to special requirements such as serving all comers. Or they could treat platforms as public accommodations like hotels or restaurants, which must also accept all.

Concurring opinions do not decide anything, of course. But Thomas may be voicing concerns percolating in the minds of other justices. “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 concluded.

Jason Thacker, who directs research in technology for the Ethics and Religious Liberty Commission, said regulation of Big Tech should matter to Christians: “These decisions are crucial for the health of our democracy and the future of religion in the digital public square.”


Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C.

@slntplanet

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JimVC

The First Amendment begins with "Congress shall make no law...", therefore neither Trump nor Twitter can violate it, since they are not Congress.

Tcr5862

I am no attorney let me see if I can explain this as I see it. If I owned a newspaper (a private forum) and refuse to publish your comments in it, that is OK. But if we were on the street and speaking before a crowd (a public forum) and I stopped you from speaking that would be a violation of your free speech rights. 

By virtue of who Trump was (President of the US) his tweet account was considered, by the court, to be made a public forum. When he was no longer the president, then his Twitter account was no longer a public form, thus private, and his blocking others was no longer considered a violation of free speech. The Twitter system is a private speech forum and the owners of Twitter can do (block) who or whatever they want.  I believe that Judge Thomas is questioning the owners of Twitter’s right to do that but the law does not clearly address that.           

Janet B

I'm confused.   Former President Trump violated the First Amendment when he blocked people from his account, but Twitter didn't violate the amendment when they blocked Mr. Trump and others from Twitter?  Does this make sense?

Tcr5862

Is it time for a break-up of these digital monopolies who control way to much of the public's communication?  Just like what happened to AT&T back in the 1970’s and 1980’s.