SCOTUS Rules On Censorship

PUBLISHED: 6:31 PM 6 Apr 2021
UPDATED: 6:34 PM 6 Apr 2021

Justice Thomas Strikes Blow For First Amendment: Outlines Roadmap For Destroying Censorship

Clarence Thomas is probably one of the last decent men in D.C.

God bless him! (Source: YouTube Screenshot)

The ability for online social media platforms to silence thought and real debate is horrifying to anyone with a modicum of intelligence. Thankfully, Americans have someone with more than that amount sitting on the Supreme Court… but he seems to be the lone man standing up for the dwindling freedoms Americans profess to love.

The Federalist explained:

Supreme Court Justice Clarence Thomas offered a roadmap to eliminating rampant social media censorship from online monopolies on Monday.

In a ruling for writ of certiorari on the case of President Joe Biden v. Knight First Amendment Institute at Columbia University, Thomas concurred in an opinion to send the case back to the U.S. Court of Appeals for the 2nd Circuit with instructions to dismiss as moot, now that Biden is in the White House. The case, launched in August, questions whether the First Amendment strips government officials of their ability to block third-party accounts on Twitter if the personal account is used to conduct official business. The lower court ruled Trump violated the First Amendment when blocking users on the platform, which served as a public forum.

“I write separately to note that this petition highlights the principal legal difficulty that surrounds digital platforms,” Thomas wrote, “namely, that applying old doctrines to new digital platforms is rarely straightforward.”

Thomas went on to outline a blueprint for breaking up protections that enable corporate tech monopolies to engage in widespread censorship frequently in one direction. The conservative justice’s argument rests primarily on the monopoly power Big Tech conglomerates possess in Silicon Valley, where unilateral control of the public forum means no real public forum at all.

“It seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” Thomas wrote. “The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least.”

In January, Twitter kicked then-President Trump from the platform altogether.

“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” Thomas emphasized. “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.”

Aside from Twitter, Thomas highlighted the dominant influence of Google and Amazon. Google, Thomas noted, serves as the “gatekeeper” between users and speech with power over 90 percent of internet searches.

“It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results,” Thomas wrote. Amazon, meanwhile, as the distributor of a majority of e-books and half of all physical books, “can impose cataclysmic consequences on authors by, among other things, blocking a listing.”

Earlier this year, Amazon deplatformed conservative scholar Ryan T. Anderson and his book “When Harry Became Sally: Responding to the Transgender Moment,” a book critical of the left’s efforts to mainstream transgenderism to a radical degree.

Now, when users search Anderson’s book title into Amazon, it’s not his book that shows up. Instead, it’s a work titled “Let Harry Become Sally: Responding to the Anti-Transgender Moment.”

Thomas himself has fallen victim to Amazon’s censorship. In February, during Black History Month, the company removed a documentary about the only black justice currently serving on the Supreme Court from its streaming service.

The PBS title, “Created Equal: Clarence Thomas in His Own Words,” appeared ripped from the platform while Amazon still promoted other titles under the category of Black History Month, such as “All In: The Fight For Democracy,” with Stacey Abrams, and two movies on Anita Hill, Thomas’s accuser of sexual misconduct who attempted to derail his confirmation.

“It changes nothing that these platforms are not the sole means for distributing speech or information,” Thomas wrote. “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.”

Protocol added:

Last fall, Justice Clarence Thomas argued that it was time to rein in Section 230 immunity. Now, Justice Thomas is laying out an argument for why companies like Facebook, Twitter and Google should be regulated as utilities.

On Monday, the Supreme Court vacated a lower court ruling in finding that President Trump had acted unconstitutionally by blocking people on Twitter. That case, which the justices deemed moot, hinged on the idea that the @realdonaldtrump account was a public forum run by the president of the United States, and therefore, was constitutionally prohibited from stifling private speech. In his concurrence, Justice Thomas agrees with the decision, but argues that, in fact, Twitter’s recent ban of the @realdonaldtrump account suggests that it’s platforms themselves, not the government officials on them, that hold all the power.

“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” Thomas writes. “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.”

Thomas argues that some digital platforms are “sufficiently akin” to common carriers like telephone companies. “A traditional telephone company laid physical wires to create a network connecting people,” Thomas writes. “Digital platforms lay information infrastructure that can be controlled in much the same way.”

Thomas argues that while private companies aren’t subject to the First Amendment, common carriers are unique to other private businesses in that they do not have the “right to exclude.” Thomas suggests that large tech platforms with substantial market power should be bound by the same restrictions. “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,” Thomas writes.

Such a restriction would substantially curb tech giants’ ability to moderate content, a proposal that both tech giants and those on the left who want to see more aggressive content moderation online would almost certainly reject.

Thomas goes on to describe the sheer scope of Facebook and Google’s market power, citing Facebook’s roughly 3 billion users and Google’s 90% market share in search. “It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail,” Thomas writes. “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.”

Thomas states that in order for an account like @realdonaldtrump to be truly classified as government controlled, “the power of a platform to unilaterally remove a government account” would have to be “reduced.”

Thomas acknowledges that it would be up to “a legislature” to impose such a restriction and that the Twitter blocking case before the court didn’t offer an opportunity to grapple with those questions. But, he writes, “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.”