Clarence Thomas puts a shot across Big Tech’s bow

THE United States Supreme Court has vacated a 2019 decision of the 2nd Circuit Court of Appeals that Donald Trump had violated the Constitution by blocking critics on Twitter. The briefly upheld argument was that tweets authored by the nation’s highest elected official were – for all intents and purposes – state forums where citizens were entitled to speak. By ordering the lower court to erase its ruling as “moot” because Trump is no longer President, the earlier judgement for the plaintiffs can have no force as precedent in that jurisdiction. The precisely identical dispute can still return to the Supreme Court but only in the unlikely event that Joe Biden’s tumbleweed account becomes the rollicking and contested place to be for warriors of the ratio.

Trump was famously banned from Twitter on 8 January on the false pretext that he ‘incited’ an ‘insurrection’ at the Capitol two days before. In fact, Democrat Party loyalist Jack Dorsey simply believed Trump was no longer the platform cash and click cow he had been prior to the election (certainly wrong) and would continue as the exiled man in the middle of politics if he wasn’t silenced (certainly right). It isn’t the unremarkable binning of jurisprudence overtaken by events that’s headlining, however, but the concurrence submitted alongside the decision proper by Clarence Thomas. Justice Thomas argues that the instruments of contemporary communication – meaning Google, Facebook and Twitter – should now be regulated like utilities.*

Only Thomas wrote a concurrence. It isn’t known how many on the bench agree with his views or under what circumstances. Not everything about his reasoning – or this highly politicised subject – is simple. For example, the Court of Appeals ruling was put aside on a technicality; the proposition that the Twitter account of the President is indeed an open forum might have had embarrassment value when Trump was in office but now that he’s not, the campaigners who brought the case were potential begetters of a stare decisis landmark that would also have ended private executive power to censor conservatives. If my reading of that happenstance-that-wasn’t is right – and if even a few other Supremes are of the same mind as Justice Thomas – I’m not convinced by John Blackman’s assertion at Reason that mooting this case gives Biden a “clean slate with respect to social media policies.” The Oval Office does not control the slate.

A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. 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.”  Clarence Thomas

 
Neither does the Supreme Court itself – which, in any case, is not in the while-we’re-at-it habit of creating constitutional doctrine on an obiter dicta whim. Following convention (cf. Munsingwear), the court has done the next best thing for future litigants: neither entrenching nor repudiating the lower court’s logic. The obvious question now is this: who will bring a comparable action requiring resolution and when? Democrat partisans are on record – erased this time but not forgotten – of opposing authorial control of speech on social media while cheering managerial cancellations. At law – when it comes to that – their goal will be to socialise the mobbing and privatise the banning. That’s the cannot-lose luxury of having militant, woke allies running Big Tech. The Thomas thesis gives small-d democrats hope that this racket may not be as unbreakable as it seems. One note of caution suggests itself even so: if a state should regulate social media as utilities, how likely is it they will become more free?

* See Justice Thomas, concurring. (Re-docketed Biden v. Knight First Amendment Institute).

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18 Responses to Clarence Thomas puts a shot across Big Tech’s bow

  1. Infidel Tiger says:

    One of the last great minds.

    A shame that court is filled with left wing loons like Roberts and Gorsuch.

  2. Entropy says:

    The pile on and attacks on Thomas on tech forums the last couple of day has been rather unedifying (accusations he is unsuitable for the Supreme Court, should never have been appointed etc). Thankfully there still has been some push back on some of the comments, and that the pushback was allowed.

  3. Infidel Tiger says:

    If big tech is against it, you are heading in the right direction.

  4. Roger says:

    The pile on and attacks on Thomas on tech forums the last couple of day has been rather unedifying…

    Some very dark insinuations.

  5. Zyconoclast says:

    A shame that court is filled with left wing loons like Roberts and Gorsuch.

    Don’t forget Kegs Kavanagh and Coney Island Barrett

  6. Leigh Lowe says:

    A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. 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.”  – Clarence Thomas

    An open invitation to mount an anti-trust suit if I ever saw one.

  7. billie says:

    Clarance has waited quietly for his time and I hope he gets his richly deserved revenge

    here’s a link to a famous speech by Thomas

    see Biden leading the lynch mob before it is dissappeared

    Biden persecuted not just Thomas, but many people in his time .. Thomas was falsly accused of sexual harassment of a colleague, sound familiar?

    Biden has always been a piece of work and it’s no surprise his kid is the same

  8. Leigh Lowe says:

    “A high-tech lynching”.
    Gold!
    Lots of squirming in seats going on when he said that.

  9. FelixKruell says:

    A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. 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.”

    Aren’t today’s digital platforms alternatives for each other?

  10. Chris M says:

    A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail…

    The issue is simply one of discrimination. Can the electric companies shut off supply to blacks, can the gas company refuse Muslim customers, can the phone company block calls from Roman Catholics… can the internet and social media providers block conservatives?

    Some discrimination is essential to living (choosing which product to buy, which public bathroom to use) but the question is where the line gets drawn. If racial / national / tribal discrimination is bad why isn’t political discrimination bad also?

  11. Chris M says:

    “Your comment is awaiting moderation. This is a preview; your comment will be visible after it has been approved”
    Sigh, OK. Try again, change the magic word:

    A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail…

    The issue is simply one of discrimination. Can the electric companies shut off supply to blacks, can the gas company refuse M_slim customers, can the phone company block calls from Roman Catholics… can the internet and social media providers block conservatives?

    Some discrimination is essential to living (choosing which product to buy, which public bathroom to use) but the question is where the line gets drawn. If racial / national / tribal discrimination is bad why isn’t political discrimination bad also?

  12. Rex Anger says:

    Aren’t today’s digital platforms alternatives for each other?

    We know that your socks are, Grigory…

  13. Baa Humbug says:

    if a state should regulate social media as utilities, how likely is it they will become more free?

    SocMed would have two choices. Either employ an army of moderators who would police libel (unlikely), or introduce new terms of service where only posts that break the laws of the posters home nation get cancelled.
    So yes, most likely SocMed would be more free.

  14. Kneel says:

    “Aren’t today’s digital platforms alternatives for each other?”

    No.
    That whole case is a joke, and I’m glad to see some common sense from SCOTUS.

    It is “illegal” for Trump to ban repliers to his personal twitter account (@realDonaltrump not @POTUS) because that infringes on their 1st amendment rights, but it’s OK for Twiter to do it at the request of politicians? Puh-lease. So if Donald Trump hires a private security company that bans certain people from a Q&A based on political outlook, that is OK as long as DJT himself doesn’t impose the rules?

    I don’t think so. They need to change it so that these social media companies are treated as common carriers including no right of refusal for content. Maybe give them an exemption that says they can use a filter on content, but only if that can easily be turned off by the user. They could have it “on” by default.

  15. Kneel says:

    “Aren’t today’s digital platforms alternatives for each other?”

    And further…
    Parler (twitter alternative) was booted from Apple App Store and Google Play store, then AWS dumped them.
    When it came out that Facebook contained much more “collusion”/”organisation” for the Jan 6th “insurrection”, they did not have their App removed from either app store.
    When Twitter left up a tweet which was a picture of a KKK hood and was targeted at a “Person of Colour”, AWS did nothing.
    When Washington Post published articles detailing Hunter Biden’s laptop contents, Google, Facebook and Twitter all immediately suppressed the content, including in Twitter private messages, despite no evidence there was any “hacking” or other illegal stuff going on (“hacked materials” was there excuse). The US’ longest running newspaper was BANNED for a Twitter post that referenced an article they had published. Then, in a fit of authoritarian hubris, Twitter said that the Post could get access and re-post the article, but they’d have to remove the original article first!

    And now we have MLB saying the election laws in Georgia are “un-American”, so in retaliation, they moved the draft and All Stars game from Georgia – which is 51% black and is held in a county which heavily black, including most businesses – to Colorado, which is 9% black and has even more restrictive voter ID laws, no “no excuse” absentee balots as well as less early voting!

    Sounds like MLB might “tank” just like the NFL… people like their sport to be, well, sport, not a partisan political comment! Even more laughable is that more Repubs watch such sports than the number of wokerati that watch!

  16. feelthebern says:

    Gorsuch is the best of all of them.

  17. Infidel Tiger says:

    Gorsuch is a neoliberal lunatic.

    There’s a reason the Dems green lighted his nomination.

    Thomas is the only member with intellectual firepower.

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