Sunday Star

The Supreme Court should free Big Tech

- GEORGE F. WILL George F.Will writes a twiceweekl­y column on politics and domestic and foreign affairs. He began his column with The Washington Post in 1974, and he received the Pulitzer Prize for commentary in 1977. GeorgeWill’s email address is georgew

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 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.”

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 “government­controlled 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?

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