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Explainer: Justice Thomas and the possibility of reining in Big Tech

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April 12, 2021

Last week was a particularly busy week for the technology industry at the nation’s highest court. First, the United States Supreme Court ruled in Google’s favor in a decadeslong court battle with Oracle over the use of certain software code to build the Android operating system. Oracle claimed that Google’s use of the code violated federal copyright law. Then, the high court released its decision in the case Biden vs. Knight First Amendment Institute at Columbia University. This particular case was ruled moot, and the lower decision was dismissed. The case was originally titled Trump vs. Knight. It was changed with the inauguration of Joseph R. Biden since the case revolved around the question of the president’s ability to block access to the public on a social media platform.

What was the case about?

The original lawsuit was filed back in July 2017 by the Knight First Amendment Institute and seven social media users against President Trump on account that he had blocked these seven individuals on Twitter after they criticized him or his policies. Being blocked by the president meant that these users could no longer see or respond to his posts on the platform. As veteran court reporter Amy Howe wrote, “The plaintiffs alleged that blocking them on Twitter violated the First Amendment, and the district court agreed. The U.S. Court of Appeals for the 2nd Circuit upheld that ruling.” The lower court ruled that the president’s Twitter account was a public forum and that the government violated the rights of these individuals by blocking access to it.

On Aug. 20, 2020, a petition for a writ of certiorari was filed. The Supreme Court agreed to review the case, but it was also during an election year. In January, the Trump administration filed a brief indicating to “the justices that, although the 2nd Circuit’s decision was worthy of their review, the case would become moot once Joe Biden succeeded Trump as president on Jan. 20.” Amy Howe explains, “Trump had been sued as the president, rather than in his personal capacity, the administration explained, but Biden would not have any control over Trump’s Twitter account.” Then after the attack on the United States Capitol over alleged election fraud, President Trump was permanently suspended from Twitter over the claim that he incited the violence (even though the administration said that this suspension could be overturned, so that fact should not have bearing on the case.) All of these shifting circumstances ultimately led the court to grant the petition for a writ of certiorari, vacate the judgement, and remand the case back to the Second Circuit with instruction to dismiss the case as moot.

What does this case have to do with online content moderation?

On April 5, Justice Clarence Thomas released a concurring opinion alongside the court’s ruling. Justice Thomas explained in detail the court’s deliberations and the reasoning behind the decision to grant the petition for a writ of certiorari. But he went on to connect this case to the larger questions surrounding the immense responsibility and control that certain technology companies have in civic discourse given our public dependence on and the massive size of technology companies such as Facebook, Twitter, Amazon, and Google.

Justice Thomas writes, “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.” He went on to state that the government might have a compelling interest to intervene in this new power dynamic by possibly limiting the right of a private company to exclude. Justice Thomas explained, “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.” He submitted two possible legal doctrines for consideration, designating social media as “common carriers” or as “public accommodations,” both of which are highly controversial in digital governance debates, especially among legal media scholars.

Justice Thomas argued that the “common carrier” designation has been applied to other industries with considerable market size, such as those in transportation and communication. These industries are given special privileges by the government, but also have restrictions placed on their ability to exclude. “By giving these companies special privileges, governments place them into a category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken.” This particular argument may overlook the difference between social media as simply a carrier of information, rather than a curator of that information posted by users. 

The other designation of “public accommodation” would apply regardless of the relative market size of the companies, given the ongoing scholarly debate about whether market power is a necessary aspect for a company to be considered a common carrier. Justice Thomas wrote that these companies may not “not ‘carry’ freight, passengers, or communications,” but nevertheless they could have their right to exclude curtailed given their public utility. “If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.” While he acknowledges that technology companies do indeed have their own First Amendment rights, he nevertheless argues that these rights may need to be diminished in light of the influence this industry has over our public discourse. This is a complex situation, especially for conservatives who traditionally resist the government’s intrusion into the rights of individuals and corporations.

Overall, Justice Thomas explores each of these options as well as their potential pitfalls throughout the concurrence. He rightly points out that these decisions would need to be enacted by various legislatures, but they also might be under the prerogative of the courts depending on the contours of the cases brought forth. This opinion, while not holding any enforceable action, is significant because a sitting Justice of the Supreme Court is making these types of arguments to reign in the power of the technology industry—an issue that both Democrats and Republican have been pursuing , even if on different ideological grounds.

What does this mean?

Justice Thomas acknowledged the tenuous realities in the current public policy debates over the role that these digital platforms play in our public discourse in light of their immense size and influence, including their ability to moderate user content. He is correct in saying that applying old doctrines to the new challenges of digital platforms is an extremely complicated matter, whether it be on issues of free speech, questions of public accommodation, or the nature of religious expression online.

As legal expert and free speech attorney David French correctly states, “Millions of Americans are deeply concerned about the power and reach of America’s largest tech companies, but their concerns often diverge sharply depending on their partisan affiliation.” French goes on to say, “The two sides are increasingly united in wanting more government regulation. They’re deeply divided as to what those regulations should say.” French, as others have pointed out, is concerned about government intervention in these matters since it may jeopardize the countless First Amendment victories that have been forged in recent years.

While Christians may disagree about the best path forward in these particular debates, we all must acknowledge that we live in a time where religious speech is increasingly seen as at odds with acceptable public discourse and free expression is often hampered in the pursuit of secularism. We need more believers engaged in this discussions who understand that the technology industry must be a major element in a full-orbed public theology. These types of decisions are crucial for the health of our democracy and the future of religion in the digital public square. 

Even with the immense complexity of these debates, one thing is abundantly clear: the dignity of our neighbor is at stake around the world. We must keep that truth central to this debate over digital governance, whether here in the United States or abroad under the repressive hand of authoritarian regimes. Though these issues may at times seem just to be about tweets, posts, and even the contours of particular content moderation policies, they must be seen as ways that human beings, created in God’s very image, are able to communicate, express themselves, and do life in an ever-increasing digital society.

Photo Attribution:

SOPA Images / Getty Contributor

Jason Thacker

Jason Thacker serves as chair of research in technology ethics and leads the ERLC Research Institute. He writes and speaks on various topics including human dignity, ethics, public theology, technology, digital governance, and artificial intelligence. His book, The Age of AI: Artificial Intelligence and the Future of Humanity, released March 2020 with … Read More