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April 05, 2021
Justice Clarence Thomas Issues Important Legal Opinion in Fight Against Big Tech
Supreme Court Justice Clarence Thomas wrote a concurrence today that calls into question how powerful Big Tech companies have become. This company has lately had issues (some legal) with Facebook, Twitter, AND YouTube. So you won't find any arguments here.
For chuckleheads like me who get confused by big words, a "concurrence" is when a judge agrees on a ruling but does so for different reasons. At issue was Twitter users suing former President Donald Trump over Trump blocking them from his Twitter account. The claim was that it violated their First Amendment rights. The Supreme Court rendered the case moot since Twitter has since banned everyone from viewing Trump's Twitter account by banning Trump from having a Twitter account. Wouldn't that be a violation of the First Amendment? Excellent question, and one that appears to be at the crux of Thomas' concurrence.
It's twelve pages long with a lot of legalese. I'd recommend giving it a thorough read. Some choice paragraphs:
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.
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. 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.
Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents' complaint of stifled speech. Where, as here, private parties control the avenues for speech, our law has typically addressed concerns about stifled speech through other legal doctrines, which may have a secondary effect on the application of the First Amendment.
What does it all mean? Well, a liberal legal blog referred to it as Thomas endorsing "a radical new view of social media companies." One "mainstream" media outlet ran with the headline that Thomas "grumbles over Trump's social media ban," completely ignoring the point he made ABOUT the ban. The fact that he's being smeared over a well-thought-out legal concurrence leads me to believe he might be on to something. At the end of the day, one of the greatest legal minds of the past few generations has came to the conclusion that Big Tech has gotten too powerful and has too much control over the public.
We've heard similar arguments made by Republican senators. We're also tired of hearing Republican senators making the same arguments while not doing a g*ddamn thing about it. This is a Supreme Court justice issuing a legal opinion into the public record. This matters.
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