Who Is Clarence Thomas?

            My VIP for this week is Justice Clarence Thomas of the U.S. Supreme Court. Thomas is a trusted and true conservative on the Court, and he has been in the news several times recently. Last fall, he argued that Section 230 should be reigned in. Now he says that companies like Facebook, Twitter, and Google should be regulated the same as utilities. Issie Lapowsky at Protocol posted the following information. 

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."

            In Thomas’ view some digital platforms should be treated as common carriers like telephone companies. “A traditional telephone company laid physical wires to create a network connecting people” while “Digital platforms lay information infrastructure that can be controlled in much the same way. This sounds like a good argument to me, but Thomas had other points to make.

            Common carriers are treated differently than private companies. While private companies have First Amendment protections, common carriers do not have the “right to exclude.” Because the large tech companies have so much power, they should have 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.”

            There is little doubt that such a restriction would curb the powers of the tech giants to moderate the content on their platforms. However, big tech has friends in high places with Democrats controlling the federal government.

            Facebook’s 3 billion users and Google’s 90% market share in search shows a lot of market power as noted by Thomas. “It changes nothing that these platforms are not the sole means for distributing speech or information…. 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.” Lapowsky concluded her article as follows. 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."

            Thomas indicated that the case before the Court was not a good vehicle to “grapple with those questions.” He also stated that Congress is the place to put such controls on big tech. With Democrats benefitting from the activities of big tech, we cannot expect any such action until Democrats are out of control. However, Thomas indicated that there is a good case for such legislation.