Supreme Court may soon find itself a Big Tech referee
Although reticent during oral arguments before the Supreme Court, Justice Clarence Thomas can be bold in his written opinions. 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 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 U.S. 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 U.S. 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.”
Public forums have generally been understood by courts to be “government-controlled spaces.” But Thomas notes “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.
Thomas thinks the common carrier analogy is especially apt with digital platforms that dominate markets. 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.”
Thomas’s concurrence did not mention, but the court might soon have occasion to remember, a 1946 case from Chickasaw, Alabama, 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.
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, had no serious consequences limiting corporations’ prerogatives. It might reverberate, however, 75 years later.
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” that government can treat them as quasi-public entities. Nevertheless, Thomas is correct that the court must eventually make distinctions and referee disputes about the new communications infrastructure. What consequential economic issue, from the development of corporations to the advent of organized labor, has not come under the court’s scrutiny?