Justice Clarence Thomas on Big Tech Censorship

Posted by Luke Boyle on the

In 2018, then President Donald Trump was sued for blocking users on Twitter. The plaintiffs argued that Trump was violating their first amendment rights by blocking them as they were not able to comment on his posts. The court ruled in the plaintiffs' favour and Trump was ordered to unblock the users. The 2nd circuit court upheld that ruling, setting the precedent that social media is the new public square and elected officials must allow all users to comment on their posts (Rep. Lauren Boebert is currently facing a lawsuit with a similar premise).

What I find striking about this decision is that the court ruled that Trump must allow users to engage with his posts on his personal Twitter account, in spite of the fact that they could still engage with him on his official government account (@POTUS). Given that the court decided that public officials must allow all users to engage with them, it would stand to reason that public officials shouldn't be excluded from using the new public square. Which is why I find it terrifying that Twitter was able to de-platform Trump before his presidential term was over, and Laura Loomer was denied access to Twitter in spite of her being selected as the Republican nominee for her congressional race. If Twitter truly is the public square, then why are they allowed to permanently ban American citizens and elected officials for expressing opinions Twitter disagrees with? Are they not violating those banned user's first amendment rights to engage in the public square?

Trump's appeal to the 2nd circuit court decision I mentioned above recently reached the supreme court. This could have been an important moment as it's one of the first Big-tech censorship cases that would have been heard by the supreme court, but alas, the case was dismissed. Clarence Thomas concurred with the dismissal of the case but left some golden nuggets of wisdom in his statement.

Thomas said "this petition highlights the principal legal difficulty that surrounds digital platforms — namely, that applying old doctrines to new digital platforms is rarely straightforward. ... some aspects of Mr. Trump's account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it". Indeed, how can you say that Twitter is a constitutionally protected forum when a low-level employee - whose labour is potentially outsourced to a contractor in a foreign nation (as is the case with Youtube and Facebook) - has the ability to temporarily or permanently suspend the account of American elected officials? Rep. Marjorie Taylor Greene was recently suspended from Twitter for an Easter Sunday post saying "He is Risen". Twitter later claimed that this was done "in error". How is a rogue employee allowed to exercise that much authority over the speech of an elected official?

This is only scratching the surface, as there is also the matter of big tech firms acting in concert to ban people from all platforms simultaneously, presumably so the banned users are not able to redouble their support on other platforms and prepare to mitigate the loss of audience. In 2018, Alex Jones was banned by Facebook, Apple, YouTube, and Spotify on the same morning. Surprisingly, the only major platform not to ban him at the time was Twitter. These firms are the modern day Robber Barons, but instead of colluding to fix prices, they collude to exclude people from access to mass communication. YouTube actually has a 3 strike system to give users some warning when they're close to being removed from the platform, but they have no problems circumventing this moderation program to remove people to make political statements. YouTuber Mumkey Jones was given 3 strikes in a matter of minutes on content that had previously been moderated and found to be suitable content. Stefan Molyneux didn't even get the 3 strikes, he was just plainly removed. Keep in mind, these bans are permanent. In our society, even some murderers are given a path to redemption.

"Today's digital platforms", Thomas continues, "provide avenues for historically unprecedented amounts of speech, including speech by government actors. 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." He said "The Second Circuit court's decision that Mr. Trump's Twitter account was a public forum is in tension with, among other things, our frequent description of public forums as 'government-controlled spaces'".

The real meat and potatoes of the statement is where Thomas says "If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude". Our legal system, according to Thomas has "long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers". An example of such a common carrier would be telephone companies. The telephone infrastructure was built by a private company, but existing laws dictate that those companies must not be able to pick and choose customers based on their ideological bent.

If these individual companies are treated as carriers for a particular service (i.e. Twitter is the common carrier for Tweets, Facebook is the common carrier for boomer memes), then they will probably just have to stop banning users who are posting lawful content to comply, but if the service is "social media", and all social media companies are considered common carriers for "social media", I believe there's far more dire consequences for them than just having to platform ideas and people they disagree with. What happens when I sign up for AT&T and I try to call you on Verizon? The call connects seamlessly in spite of us being platformed by different companies, anywhere in the country, at any time.

What I think is next for social media companies as common carriers is that if I make a post on Facebook, you must be able to access it, and engage with it on Twitter. This essentially means, there would be some standard shape and way for sending, and storing social media content. Meaning all existing, and future social media companies (Thomas also says that "no substantial market power is needed so long as the company holds itself out as open to the public") must adhere to this standard, ensuring complete suffocation of innovation in this space. As is the case with telecommunications companies, and banks, this may also mean that Twitter and Facebook would have to abide by KYC (Know Your Customer) legislation, and user's real world identities would be tied to their accounts, and reported to regulatory bodies. That may also mean the companies must comply with counter-terrorism legislation and report users engaging in potentially illegal activities (or face large fines for not reporting it).

Essentially, only extremely large companies would have the resources to abide by the legislation, and the government will have destroyed the growth of yet another industry. I think that is a long shot, especially considering Facebook is now the largest corporate lobbyist, outspending even the telecom, and defence companies (and that doesn't include the nearly $500 million Mark Zuckerberg "donated" to fund the 2020 presidential election), but I believe it's one of the most important issues we presently face.

I look forward to seeing future supreme court cases on this topic, particularly the statements of Clarence Thomas who has consistently been the voice of reason on the bench. Clarence Thomas' senate confirmation hearings were oddly reminiscent of the Brett Kavanaugh hearings in 2017 as a report of alleged sexual misconduct was leaked to the press, and his reputation was dragged through the mud. Thomas proceeded to dunk on the committee of dickheads (lead by then Senator Joe Biden) with one of my all-time favourite quotes:

This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, as far as I'm concerned it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.