Supreme Court Justice Clarence Thomas blasted Big Tech on Monday, arguing that they’re “common carriers” who don’t have the right to censor Americans.
In an order dismissing a lawsuit over President Trump blocking some users from replying to his Twitter feed (which has since been permanently deleted and therefore rendered moot), Thomas took aim at Big Tech’s monopoly power over online speech.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is control of so much speech in the hands of a few private parties,” Thomas wrote.
“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.”
🚨Clarence Thomas suggests that social media companies may NOT have a First Amendment right to regulate speech on their platforms, analogizing them to "common carriers" and "places of public accommodation." https://t.co/2zx7nCtIAz pic.twitter.com/ZleTE1aI0S
— Mark Joseph Stern (@mjs_DC) April 5, 2021
Thomas explained that tech companies are at their essence common carriers akin to phone companies, and therefore cannot be treated as publishers immune from private lawsuits.
“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another,” Thomas wrote.
“A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot ‘be treated as the publisher or speaker’ of information that they merely distribute.”
“Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin),” Thomas added.
Thomas went on to argue that Section 230 of the Communications Decency Act of 1966 violates the First Amendment.
“Threats directed at digital platforms can be especially problematic in the light of 47 U.S.C. §230, which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content,” Thomas wrote.
“This immunity eliminates the biggest deterrent – a private lawsuit – against caving to an unconstitutional government threat.”
“For similar reasons, some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect free speech from private censorship.”
Thomas is signaling to Congress that with the right legislation, Big Tech can be put in its place and prevented from silencing Americans, including the President of the United States.
Read the full order:
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