By Bret Swanson
Yesterday, Supreme Court Justice Clarence Thomas redoubled both his criticism of Big Tech’s assault on free speech and his invitation for a comprehensive review of speech in the internet era. The case was Joseph Biden v. Knight First Amendment Institute at Columbia University, which dealt with then-President Donald Trump’s ability to block users on Twitter. Given the change in administrations, the high court vacated the US Court of Appeals for the Second Circuit’s decision as moot.
Justice Thomas agreed with his colleagues’ instruction for the
Second Circuit to dismiss the case. But in a concurrence, he once again argued there are bigger, more fundamental issues
at play. Internet speech and equal-access cases are proliferating, but there’s
no settled doctrine or even framework for this new world. He wrote that because
“the principal legal difficulty that surrounds digital platforms — namely, that
applying old doctrines to new digital platforms is rarely straightforward,” we
probably need deeper analysis from the high court.
One obvious problem in this case was that the private and public
spheres overlapped. When President Trump was acting on Twitter, was he “the
government” for First Amendment purposes? Maybe so. Perhaps his blocking
several user accounts infringed on their First Amendment rights to address the
government. But then Twitter removed Trump’s account from the platform
entirely, preventing hundreds of millions of people from interacting with him.
Today’s digital platforms 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.
This is a genuine dilemma. Although Thomas is clearly annoyed with
Big Tech’s partisan behavior, he may not know exactly what the solution is.
Like me, he probably does not relish the possibility of government regulation
of speech or innovative economic sectors.
As I recently noted, Justice Thomas’s friend, Judge Laurence Silberman of the
District of Columbia Circuit, has also called for a review of internet-era
speech. Silberman is alarmed at the tech and media platforms’ censorious
behavior and thinks New
York Times v. Sullivan may need an overhaul. (The ruling barred
public officials from suing for defamation.) But like Justice Thomas, he admits
there is no easy solution.
Silberman recently argued:
I do not take a position on the legality of big tech’s behavior. Some emphasize these companies are private and therefore not subject to the First Amendment. Yet — even if correct — it is not an adequate excuse for big tech’s bias. The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is — I say this advisedly — fundamentally un-American.
Those who don’t think this is a big deal, or who supported strict
net neutrality regulation over the last two decades, should consider recent
events from another point of view.
Imagine if, in the closing weeks of a presidential election,
Comcast blocked your access to the New York Times or CNN. What if Verizon
steered you toward COVID-19 information from the Imperial College of London and
the World Health Organization while insisting alternative COVID-19 analysis
from Stanford, Harvard, and Oxford was “misinformation”? Or how about this:
Could AT&T erase Kamala Harris from its networks — not just her own
account, but even the third-party publication of her voice — while allowing
human traffickers to use its networks to solicit the smuggling of children? The
Big Tech and media platforms have — reversing the partisan polarity — engaged
in each of these practices.
Clarence Thomas may not yet know the right solution. But he is
asking centrally important questions.