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Clarence Thomas, El American

Justice Clarence Thomas, Common Carriers, and the Regulation of Big Tech

The most silent member of the SCOTUS, once again, has provided a great service to the country

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A recent case before the United States Supreme Court, Biden v. Knight First Amendment Institute, did not bring a direct legal victory for the appellee. The case was remanded to a lower court with instructions by the Court to dismiss the case as moot, meaning that it is no longer a live controversy. Justice Clarence Thomas, however, issued an opinion in that case on May 5th that may point the way for an ultimate solution to remedying Big Tech censorship.

The lawsuit brought about by The Knight First Amendment Institute, a digital defender of free speech, which began in 2017 and involved then-President Trump’s blocking of critical Twitter comments from his account, has brought to surface a most pressing issue that far exceeds the initial factors of the lawsuit. Twitter, Facebook, and Google (Big Tech) are censoring free speech, specifically political, scientific, and religious. The intolerant practice of deplatforming from major social media networks has signaled a challenge to politicians on how best to grapple with this most dangerous threat to a free society. 

Thomas offered, in his twelve-page scholarly legal prognosis, an awesome affirmation of the immense power that Big Tech possesses and suggested the perils that this poses for liberty. The country’s lone black SCOTUS sitting member, appointed by Republican President George H. W. Bush, displayed an optimal appreciation of the situation when he wrote, “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.” Justice Clarence Thomas is spot on. 

To dismiss any doubt that the question of Big Tech’s speech suppression is a seminal concern for the associate justice, Thomas added, “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…both companies are public, [yet] one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin).”

When one takes note that there is an ideological synchronization between the oligarchy that composes Big Tech and that such unchecked power nullifies the Founding Fathers’ signature premise of building a political system with inherent checks and balances to avoid tyranny, the primacy of addressing this challenge to the Republic is well-founded.

There are numerous ways of dealing with regulating and/or controlling the extent to which these social media giants can determine the allowable public expression and, ultimately, political policy. Amending Section 230 exclusively is one alternative. Critics of this approach point to the cumbersomeness of this route and the potential challenges of stifling private enterprise and speech. Other options have been presented in Congress. 

Senator Josh Hawley (R-Mo) has introduced the Bust Up Big Tech Act. This bill seeks to mandate the breakup of companies such as Amazon, Google, given their overall market dominance of online hosting, cloud services, and as well as retail goods that parallel monopolies. This would, in effect, call for the weaponry of antitrust enforcement. Critics to this path feel that there may be ways to circumvent the policies of monopolization purposes by breaking up these companies into de facto subsidiaries.    

Clarence Thomas, El American
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors.” (EFE)

Another legislation that aims to limit Big Tech’s power is the 21st Century FREE Speech Act, introduced by Senator Bill Hagerty (R-Tn). In addition to repealing Section 230 entirely, it offers a solution for the vacuum this would leave. The resolution would be in treating these social media powerhouses as “common carriers”. This was the course Justice Clarence Thomas signaled as the best remedy for the problem. 

American law understands a common carrier to be a private or public entity that transports goods, people, or messages from one place to another for a fee. Many businesses classify as common carriers. Among those included are taxi services, trucking companies, rail freight services, waste removal services, couriers, utility companies, vehicle towing services, and air freight and passenger services.

Key to including the social media conglomerates under the common carrier category, is their functional capacity as conveyors of communication, like the task provided by telephone and telegraph companies. In other words, free speech would innately be protected because common carriers do not possess their own set of speech rights policy (“community rules”). Speech discrimination is legally barred under the common carrier definition.  

The most silent member of the SCOTUS, once again, has provided a great service to the country. By offering his stellar opinion in this recent muted case, the roadmap to preserving America’s freedom has received an enormous lift. Thank you, Justice Clarence Thomas.

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