On Monday, Justice Clarence Thomas announced that the Supreme Court soon will have to put an end to big tech tyranny. He cited the “glaring” problem of social media platforms like Facebook and Google wielding unlimited power to censor users whose views they don’t like. These tech giants, he argued, ought to be regulated like “common carriers,” which are legally required to serve all customers. AT&T can’t refuse to open a phone account for you or limit your conversations. Amtrak cannot pick and choose who rides its trains.
Thomas’s opinion offers hope at a time when Democrats controlling Congress are demanding tech giants do more censoring, not less. On March 25, Democrats on the House Committee on Energy and Commerce ordered tech CEOs clamp down on “disinformation” and silence views that “undermine social justice movements.” Spoken like true totalitarians.
Thomas’ groundbreaking announcement was made in the context of a case involving Donald Trump. As president, he blocked critics from commenting on his tweets or retweeting them. Critics sued, claiming the president’s Twitter account is a public forum. The high court ruled the case is now moot because Trump is out of office. Thomas concurred, and agreed with a lower court ruling that Trump violated his critics’ First Amendment right to be heard.
But Thomas said “the more glaring concern” is not what Trump did to a few critics. It’s the power of tech giants to censor or ban users entirely, even a president. Thomas expressed astonishment that Facebook and Google are permitted to remove an account “at any time for any or no reason.” He wrote “one person controls Facebook … and just two control Google.” They decide what viewpoints billions of people can express or hear.
That power, said Thomas, must be reined in when a future controversy reaches the high court.
Big tech’s defenders argue that because they’re private companies, they’re free to censor. The First Amendment was written to prohibit only government from silencing viewpoints. But Thomas says it’s past time for the Court to get tech savvy. These companies are more like common carriers or public utilities than private companies. They must be open to all the public.
Thomas also likened them to “public accommodations” like hotels and baseball stadiums, which are legally required to serve everyone and not discriminate.
Thomas doesn’t see big tech tyranny being solved by competition, as newer companies emerge. He points to the “substantial barriers to entry.” The fate of Parler proves the point. When Parler offered a censorship-free platform, big tech united to crush it.
Some hailed Thomas’s opinion as “an invitation to Congress to declare Twitter, Facebook, and similar companies common carriers.” But the truth is that Democrats have no interest in the free exchange of ideas. They’d rather deputize Facebook CEO Mark Zuckerberg to censor competitors.
And don’t count on President Biden. A staggering 14 of his picks to serve during the transition or in his new government are Apple, Facebook, Twitter, Google and Amazon recruits, according to a Daily Caller tally.
Biden probably owes his presidency, in part, to big tech. When the New York Post published a story documenting a Chinese company’s dealings with the Biden family, including candidate Joe Biden, Silicon Valley tagged it as “disinformation.” Facebook buried it, and Twitter locked the Post’s account entirely. In the weeks before the election, voters were denied information that could have influenced their choice.
Now, with Democrats in power, there’s no chance lawmakers will classify tech companies as common carriers. But Thomas says the Court can apply that reasoning any way, without waiting for Congress.
Until then, the public will hear only what the Silicon Valley wants. Last week, Lara Trump posted an interview with the former president on Facebook. Immediately, Facebook took it down, explaining, “further content posted in the voice of Donald Trump will be removed.”
Only the high court will restore uncensored political discourse, an American ideal. Thomas’s opinion illuminates the way.