Sometimes a concurring opinion in a Supreme Court ruling says more than the main decision. That seemed to be the case Monday when the justices vacated a lower court decision that found former President Donald Trump violated the First Amendment by blocking seven of his critics from viewing or responding to tweets from his @realDonaldTrump Twitter account. In a concurrence, Justice Clarence Thomas laid out the legal challenges posed by Big Tech and free speech.
A lower court concluded the president’s account amounted to a public forum where other users had free speech rights. In a brief, unsigned order, the Supreme Court justices sidestepped the merits and directed the 2nd U.S. Circuit Court of Appeals to dismiss the case as moot because Trump is no longer a public official.
But Thomas wrote a 12-page concurring opinion noting the difficulties of applying traditional legal doctrines to new digital platforms—particularly given states’ attempts to regulate them. Thomas wrote that digital platforms allow an unprecedented amount of speech. “Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties,” he wrote. Social media companies can permanently bar a user, even the president, from the platform.
Big Tech’s power clearly alarms Thomas. He expressed concern about Amazon’s and Google’s ability to harm writers or suppress content through how they organize search results. He mentioned social media platforms, too: “Although both companies are public, one person controls Facebook [CEO Mark Zuckerberg], and just two control Google [Alphabet CEO Larry Page and President Sergey Brin].”
Two long-standing legal doctrines could allow legislators to curb these massive internet companies, Thomas wrote. They could define digital platforms as common carriers—much like airlines—subject to special requirements such as serving all comers. Or they could treat platforms as public accommodations like hotels or restaurants, which must also accept all.
“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,” Thomas concluded.
This story originally appeared in WORLD. © 2021, reprinted with permission. All rights reserved.