The Supreme Court should referee Big Tech

WASHINGTON — Although reticent during oral arguments before the Supreme Court, Justice Clarence Thomas can be bold in written opinions bristling with strong convictions, of which he has many and about which he is forthright.

Now in his 30th year on the highest bench, the most senior justice last week warned his eight colleagues that they have a coming rendezvous with a boiling controversy that implicates constitutional guarantees. It concerns the power, and the proper characterization, of social media and tech companies.

Before the 2020 election, President Donald Trump blocked some critics from his Twitter feed. They sued.

The US Court of Appeals for the Second Circuit held that, because he used Twitter to communicate with the public, and because the comment threads are a public forum, blocking individuals violated the First Amendment free speech guarantee.

Two days after his Jan. 6 incitement of a mob of his supporters who attacked the US Capitol, Twitter suspended his account. Last Monday, the Supreme Court declared the case moot and vacated the Second Circuit’s judgment. Thomas, while concurring, wrote, “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 notes the “stark” disparity between the control exercised by Trump, who blocked a few critics, and that exercised by Twitter, which under its terms of service (it can remove anyone from its platform “at any time for any or no reason”) barred Trump from his then about 89 million followers. But what of the Second Circuit’s “intuition” (Thomas’s word) that part of Trump’s Twitter account was a “public forum”?

Public forums have generally been understood by courts to be “government-controlled spaces.” But Thomas notes that “unbridled control” of Trump’s account was “in the hands of a private party.”

There are, however, doctrines that limit the right of private companies to exclude. “Common carriers” that hold themselves open to the public — in transportation (e.g., railroads) and communications (e.g., telegraph companies) have been generally required to serve all comers.

Also, government can limit the right to exclude companies that are “public accommodations,” although courts disagree about whether this term applies to other than “physical” locations. It is, Thomas believes, “a fair argument” that some digital platforms are sufficiently like common carriers or places of public accommodation to have restricted rights to exclude.

Thomas thinks the common carrier analogy is especially apt with digital platforms that dominate markets — e.g., Facebook with roughly 3 billion users, Google with about 90% market share. He is perhaps too certain that the network effects constitute barriers to entry that “entrench” such companies against competitors. As with a “communications utility,” Thomas writes, such concentration “gives some digital platforms enormous control over speech.”

He adds: “Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.” (Thomas’s judicious reticence precludes his mentioning Amazon’s unexplained and presumptively political and disreputable recent decision to end its streaming of the documentary “Created Equal: Clarence Thomas in His Own Words.”) [Jeff Bezos, owner of The Washington Post, is founder and chief executive of Amazon.]

Thomas’s concurrence did not mention, but the court might soon have occasion to remember, a 1946 case from Chickasaw, Ala., a company town owned and operated by the Gulf Shipbuilding Corp.

In 1943, Grace Marsh was arrested (by a sheriff’s deputy paid by the company) for handing out Jehovah’s Witnesses literature, in violation of company policy. Marsh was being silenced, not by state action — by government — but by a private company not obligated to respect individual rights.

But in a startling Supreme Court ruling for Marsh, Justice Hugo Black, an Alabamian, writing for the majority, said that “the more an owner, for his advantage, opens up his property for use by the public in general,” the more the owner must respect the constitutional rights of members of the public. This decision, likening Gulf Shipbuilding to a government (of Chickasaw), had no serious consequences limiting corporations’ prerogatives. Seventy-five years later, however, it might reverberate.

People with a wholesome devotion to liberty have a healthy wariness about government compelling private companies to behave as appendages of government.

Such people should be hesitant about identifying private entities whose services are so impactful that the entities are of such “public interest” or “public concern” (the Supreme Court has used both terms) that government can treat them as quasi-public entities.

Nevertheless, Thomas is surely correct that the court must eventually make distinctions and referee disputes about the new communications infrastructure.

What consequential economic development, from the development of corporations to the advent of organized labor, has not come under the court’s scrutiny?