• Robert R Zerfing

Justice Clarence Thomas Lays Out Plan To Limit Big Tech Censorship

The Supreme Court has dismissed a lower court ruling that former President Trump violated the First Amendment rights of critics that he blocked on Twitter. Justice Clarence Thomas not only laid out why the court dismissed the case, but also argued why the tech giants should not have the power to censor others for having lawful speech and sharing their opinions.


In this article, we are going to cover some of his key points. He begins with:


The Second Circuit held that the comment threads were a “public forum” and that then-President Trump violated the First Amendment by using his control of the Twitter account to block the plaintiffs from accessing the comment threads. Knight First Amdt. Inst. at Columbia Univ. v. Trump, 928 F. 3d 226 (2019). But Mr. Trump, it turned out, had only limited control of the account; Twitter has permanently removed the account from the platform.

Notice what he said there at the end? How is one act, Trump blocking a few people a violation of the 1st Amendment, whereas Twitter permanently erasing him, is not? A double standard is it not?


Respondents have a point, for example, that 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. The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages.1 Under its terms of service, Twitter can remove any person from the platform—including the President of the United States—“at any time for any or no reason.” Twitter Inc., User Agreement (effective June 18, 2020).

Here he pointed out the hypocrisy and double standard. Moving forward he begins to lay out why the tech giants should not have the ability to censor speech just because the individuals in charge do not support the opinions.


While this case involves a suit against a public official, the Court properly rejects today a separate petition alleging that digital platforms, not individuals on those platforms, violated public accommodations laws, the First Amendment, and antitrust laws...
...The petitions highlight two important facts. 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.

The simple fact that just a few people control so much information, speech, and communication is a problem. Justice Thomas very justly points out that this will need to be addressed and then begins to lay out his rationale as he continues.



Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service, to remove the account “at any time for any or no reason.” Twitter exercised its authority to do exactly that.

I am just going to leave that there.


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. Historically, at least two legal doctrines limited a company’s right to exclude. Some scholars have argued that common-carrier regulations are justified only when a carrier possesses substantial market power. Candeub 404. Others have said that no substantial market power is needed so long as the company holds itself out as open to the public.

Here Justice Thomas is starting to talk about the precedent that could be used to force the tech companies to stop censoring free speech.

And this Court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when “a business, by circumstances and its nature, . . . rise[s] from private to be of public concern.” At that point, a company’s “property is but its instrument, the means of rendering the service which has become of public interest.”

Nobody can deny that the tech industries fit this classification. They have the ability to influence elections as we have seen with the election of 2020. They censored conservatives by the millions, blocked any and all news stories that involved Hunter Biden, and put fake news labels on all articles that they disagreed with, even if they were just opinions.


Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another. 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.

Technical stuff there... moving on:


The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.

Here he begins to allude to the Monopolies and the fact that there can be no competition while they control the market. When they completely control the market, in regards to practically all communication, this would make it more important that they would have to adhere to the 1st Amendment.


To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.
Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet—and users rarely do— Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Grind, Schechner, McMillan, & West, How Google Interferes With Its Search Algorithms and Changes Your Results, Wall Street Journal, Nov. 15, 2019. Facebook and Twitter can greatly narrow a person’s information flow through similar means. And, as the distributor of the clear majority of e-books and about half of all physical books,4 Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.

Boom! The vast majority of not just American, but GLOBAL communication should NOT be controlled by 5 people!!


It changes nothing that these platforms are not the sole means for distributing speech or information. 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.

Justice Thomas brings some serious common sense into this paragraph. Anyone saying that there are competing platforms out there like Minds or Gab is being disingenuous to say the least. Minds, Gab, MeWe, Rumble, etc are not competitive whatsoever. Not to mention the fact that the tech giants often combine their efforts to silence others and destroy competitition like they did by joining forces to shut down Parler.


None of this analysis means, however, that the First Amendment is irrelevant until a legislature imposes common carrier or public accommodation restrictions—only that the principal means for regulating digital platforms is through those methods. Some speech doctrines might still apply in limited circumstances, as this Court has recognized in the past.
For example, although a “private entity is not ordinarily constrained by the First Amendment,” Halleck, 587 U. S., at _, _ (slip op., at 6, 9), it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Ibid. Consider government threats. “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.”

Here he brings another common sense point. If a person is giving their opinion in a lawful way, not only should it not be censored, but I will also bring up the point... Why should it? Wheras, if the content being espoused on social media is illegal such as threats to a person or entity, then that could very well be dealt with. This is not a hard concept. If something is illegal, then it should not be permitted. Hence, it being illegal! If someone gives their opinion about a virus or politician, that is free speech. Not illegal!


The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.

I really do not think that this needs more explaining than that and what I have previously stated. The simple fact that less than 5 people on this planet can control the flow of information with little to no opposition is a problem. The impact that it can have on our way of life, elections, economics, and even foreign policy is astronomical.


Look what they have done just in regards to this virus we are having to deal with. They censored any and all dissenting opinions to the point of erasing some of them off of the internet completely. They did this saying that it was "science denial" even though, for most of these censored opinions, they were more scientificly sound than the narrative.


I am a firm beleiver in Private Ownership and that the owner of a company should have the ability, and the right, to create their own policies and practices. However, at this point, nobody can honestly call Google, Twitter, Facebook, Amazon, etc a private enterprise. They are public utilities that control the flow of information in this world and should not have the power to limit peoples free speech. It is just Common Sense!


To see the entirity of Justice Thomas' opinion, click the link below.

https://www.supremecourt.gov/orders/courtorders/040521zor_3204.pdf

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