Tuesday, April 6, 2021 : By Nathan Skates
Supreme Court Justice Clarence Thomas put Big Tech in his crosshairs on Monday, writing a 12-page opinion on the power of these monopolistic companies that now have the power to control and censor the constitutional right of free speech.
The Supreme Court dismissed a case against former President Donald Trump in which the plaintiffs claimed he violated their First Amendment rights by blocking them on Twitter. The justices ruled that the case was moot since Trump is no longer in office and has been banned from Twitter.
The newsworthy part of the case is that Justice Clarence Thomas took the opportunity to weigh in on the power that Big Tech companies have gained over the exchange of Americans’ speech and ideas. Thomas explained, “I write separately to note that this petition highlights the principal legal difficulty that surrounds digital platforms — namely, that applying old doctrines to new digital platforms is rarely straightforward.”
“Respondents have a point, for example, that some aspects of Mr. Trump’s account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it…. The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages.”
Regarding the unique situation Big Tech presents, Thomas wrote,
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is 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.”
Thomas even called out the owners of Google and Facebook by name, saying, “Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin).”
Thomas stated, “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 offered two solutions: common-carrier laws requiring the companies to serve all or to label Big Tech companies as public accommodations. Thomas claimed digital communication companies already resemble common carriers such as telephone companies and newspapers by carrying information and forming an “information infrastructure.”
Thomas cited Facebook’s 3 billion users and Google’s 90 percent hold on total market share, emphasizing their value and how much of the market they already dominate.
Tech companies present a truly unique challenge to free market conservatives. Ideally, conservatives want government to practice laissez-faire economics and allow businesses to operate unhindered. Monopolies, however, have the power to restrict competition for services that are critical to a capitalist system and to society at large. The problem of monopolies grows even more serious when those monopolies control the spread of information.
The American economy is inextricably linked to technology, and companies now need to maintain a presence not only through a website but through social media and the ability to be searched and found on Google. Companies like Google and Facebook control so large a portion of the market that no real competition exists. When competition does exist, Big Tech moves to squash it, a high-profile example being the recent case of Parler.
A traditional monopoly had the ability to control one aspect of the economy, but tech monopolies can control far more elements of American society than a single service or product or supply chain. By controlling who can use tech platforms, how many users can see certain posts, what information can be shared, and whether that information is “acceptable” according to a “fact checker,” tech companies are able to pick winners and losers not only across broad aspects of the economy but also politically and culturally. Moreover, as seen in the almost overnight “disappearance” of Parler, a billion dollar social media site, the Big Tech firms show a willingness to conspire and leverage their collective power to crush their competition.
If Tech companies are going to completely dominate all competition and control American’s access to ideas and the free expression of news and information, then something must be done to ensure fair play. A new and complex problem will require new legal solutions, and thankfully it sounds like one jurist is ready to address the problem.