President Joe Biden is so out of touch with average Americans that he doesn’t seem to realize the irony of his two latest initiatives — or he just doesn’t care. Just weeks after Democrats in the House passed what some are calling the “Death of Democracy Act” to mandate ID-less voting across the country, the…
Supreme Court Justice Clarence Thomas appeared to signal that Big Tech firms could be regulated after Facebook and Twitter suspended President Donald Trump earlier this year.
Thomas, considered a conservative on the high court, made the point during a 12-page submission as the Supreme Court issued an order that rejected a lawsuit over Trump’s blocking of certain Twitter users from commenting on his posts before his account was taken down. The Supreme Court said the lawsuit ultimately should be dismissed as Trump isn’t in office anymore and was blocked from using Twitter, coming after the Second Circuit Court of Appeals had ruled against Trump.
“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,” Thomas wrote Monday (pdf).
“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 also noted there are arguments suggesting digital platforms such as Twitter or Facebook “are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.”
Thomas made reference to the respective owners of Facebook and Google by name—Mark Zuckerberg, Larry Page, and Sergey Brin.
“Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin),” he wrote.
Thomas agreed that Trump’s Twitter account did “resemble a constitutionally protected public forum” in certain aspects, he noted that “it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” possibly referring to Twitter’s ban against Trump following the Jan. 6 incident.
“Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service, to remove the account ‘at any time for any or no reason,’” he added.
“Twitter exercised its authority to do exactly that.”
Thomas then said that modern technology isn’t easily addressed by existing laws and regulations. But he warned that the Supreme Court may “soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
“The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him,” Thomas said.
“But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
Thomas noted that Big Tech firms have a vast amount of power over the flow of information—even books. He said it does not matter that Amazon, Facebook, Twitter, and others are not the only ways in which to distribute speech as long as their power to do so is unequaled.
“A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail,” he wrote. “But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.”
Supreme Court Justice Clarence Thomas raised eyebrows over a statement appearing to warn social media companies that their rights to censor objectionable speech might be curtailed soon.
Thomas made his thoughts known in a 12-page concurrent opinion on a Supreme Court decision that considered whether former President Donald Trump had acted unconstitutionally when he banned several people from following his now-defunct Twitter account.
That lawsuit was ruled moot because Trump had been permanently banned.
Thomas mused that the argument from the plaintiffs were undermined by the fact that Trump’s social media accounts were later suspended by numerous social media platforms.
He then questioned whether those companies weren’t in violation of free speech rights when they censored the use of their platforms.
"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," Thomas said in his written comments. "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 carefully considers whether social media companies should be afforded legal protection by the government outlined in Section 230 of the Communications Decency Act, and laments that the current case doesn’t allow for the court to address the issue fully.
As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.
"This petition, unfortunately, affords us no opportunity to confront them," Thomas concluded.
The former president said in an interview in March that Twitter did him a favor by banning him from its platform because he was reaching far more people with the written statements that he has been releasing.
"I like this better than Twitter," Trump said. "Actually they did us a favor, this is better."
Here’s more about the warning from Justice Clarence Thomas:
The Senate parliamentarian has allowed Senate Majority Leader Chuck Schumer (D-NY) to use reconciliation to ram through additional legislation in a win for President Joe Biden’s agenda.
Biden’s $2.25 trillion infrastructure proposal is now closer to becoming law by process of revising the fiscal 2021 Budget Resolution, which avoids the filibuster and customary Senate debate.
“The Parliamentarian has advised that a revised budget resolution may contain budget reconciliation instructions. This confirms the Leader’s interpretation of the Budget Act and allows Democrats additional tools to improve the lives of Americans if Republican obstruction continues,” Schumer’s office said Monday.
“While no decisions have been made on a legislative path forward using Section 304 and some parameters still need to be worked out, the Parliamentarian’s opinion is an important step forward that this key pathway is available to Democrats if needed,” the statement concluded.
The Democrats had already used budget reconciliation to pass the coronavirus package without any Republican support by a 50-49 Senate vote on March 6, when Sen. Joe Manchin (D-WV) used his leverage to hold up the vote to win certain provisions in the budget, forcing Biden’s hand.
Both chambers will now need to pass a concurrent resolution to initiate an additional set of reconciliation instructions. Then the Senate will require 15 hours of floor debate and another long night of vote-a-rama.
Sen. Ron Wyden (D-OR) said about the ruling that “The American people want bold action to address our country’s many challenges, and Democrats now have more options to overcome Republican obstruction and get things done.”
“I’m pleased by the parliamentarian’s ruling that budget resolutions can be revised, allowing us to consider moving additional bills through the reconciliation process,” he expressed.
Treasury Secretary Janet Yellen will reportedly call for a global minimum corporate tax rate to prevent U.S. companies from relocating offshore in response to the Biden administration’s forthcoming tax hikes, Axios reported on Monday.
The news outlet made clear that "by trying to convince other countries to impose a global minimum tax, Yellen is acknowledging the risks to the American economy if it acts alone in raising corporate rates."
The administration has proposed initiating the largest tax hike in almost 30 years to pay for President Biden’s more than $2 trillion American Jobs Act — a bill slated to fund America’s "infrastructure" but that also finances major policy progressive policy initiatives such as climate research, green energy, and free education in addition to highways, bridges, and roads.
The tax changes include raising the country’s corporate tax rate from 21% to 28%, a move that conservatives and moderate congressional Democrats have argued could be devastating for the American middle class.
In a speech to the Chicago Council on Global Affairs on Monday, Yellen is expected to push for all other industrialized nations to raise their corporate tax rates to a minimum standard, as well, to ensure economic "competitiveness" worldwide. However, she will reportedly argue that the tax rate minimum is for the main purpose of ensuring those foreign countries have enough revenue to maintain their own governments.
"Competitiveness is about more than how U.S.-headquartered companies fare against other companies in global merger and acquisition bids," the secretary plans to say, according to an excerpt of her prepared remarks obtained by Axios. "It is about making sure that governments have stable tax systems that raise sufficient revenue to invest in essential public goods and respond to crises, and that all citizens fairly share the burden of financing government."
"We are working with G20 nations to agree to a global minimum corporate tax rate that can stop the race to the bottom," she will state.
During Donald Trump’s presidency, the business-minded Republican slashed the U.S. rate from 35% — a global high — to 21%, arguing the previous rate put American companies at a global disadvantage and resulted in many of them moving their businesses abroad.
Axios reported that Biden has tasked Yellen with convincing the business community that the massive infrastructure proposal and subsequent tax increases won’t lead to inflation, a tall order by all accounts. Apparently, in the face of pressure, Yellen will look for significant international assistance.
“Get woke, go broke” has become an anthem for critics of Major League Baseball’s decision Friday to pull its All-Star Game and 2021 draft from Atlanta in protest of Georgia’s new election integrity law. But perhaps the most condemning response to the organization’s decision is coming not from fans but from Congress. Rep. Jeff Duncan,…
Supreme Court Justice Clarence Thomas today outlined a detailed legal argument for why social media companies might need to be subject to strict rules forbidding them from denying service to users for any reason or no reason, including the possibility of designating them as common carriers — which would effectively eliminate their ability to ban or censor users for legal, First Amendment protected speech.
Thomas outlined his opinion in a concurrence to rejecta case that began under the Trump administration, challenging the President’s right to block users from his Twitter feed.
However, Thomas indicated that the Supreme Court will soon have to address the issue of tech censorship.
“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” wrote Thomas.
Thomas also noted other cases that raised concerns about digital platforms’ control over speech. On the rejected case brought by Loomer and Freedom Watch last year, Thomas noted that it highlighted “two important facts.”
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.
The case addressed by Thomaswas brought on the basis that the president is a public official, and that his feed should thus be considered a constitutionally protected public forum, therefore implying that the President cannot bar users from his feed via the block feature.
Thomas argued that Twitter’s decision to ban President Trump proved that Twitter, not the President, controlled whether citizens could interact with him.
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.
Despite rejecting the Twitter blockingcase, Thomas went on to note many of the issues with social media censorship, and suggested that tech platforms might be considered common carriers or places of public accommodation, both of which are tightly restricted in their ability to deny service.
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. Historically, at least two legal doctrines limited a company’s right to exclude.
First, our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers. Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J. L. & Tech. 391, 398–403 (2020) (Candeub) see also Burdick, The Origin of the Peculiar Duties of Public Service Companies, Pt. 1, 11 Colum. L. Rev. 514 (1911).
Justifications for these regulations have varied. Some scholars have argued that common-carrier regulations are justified only when a carrier possesses substantial market power. Candeub 404. Others have said that no substantial market power is needed so long as the company holds itself out as open to the public. Ibid.; see also Ingate v. Christie, 3 Car. & K. 61, 63, 175 Eng. Rep. 463, 464 (N. P. 1850) (“[A] person [who] holds himself out to carry goods for everyone as a business . . . is a common carrier”).
And this Court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when “a business, by circumstances and its nature, . . . rise[s] from private to be of public concern.” See German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 411 (1914) (affirming state regulation of fire insurance rates). At that point, a company’s “property is but its instrument, the means of rendering the service which has become of public interest.” Id., at 408.
This latter definition of course is hardly helpful, for most things can be described as “of public interest.” But whatever may be said of other industries, there is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers. Candeub 398–405. Telegraphs, for example, because they “resemble[d] railroad companies and other common carriers,” were “bound to serve all customers alike, without discrimination.” Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 (1894).
In exchange for regulating transportation and communication industries, governments—both State and Federal—
have sometimes given common carriers special government favors. Candeub 402–407. For example, governments have
tied restrictions on a carrier’s ability to reject clients to “immunity from certain types of suits”3 or to regulations that
make it more difficult for other companies to compete with the carrier (such as franchise licenses). Ibid. By giving these companies special privileges, governments place them into a category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken.
Second, governments have limited a company’s right to exclude when that company is a public accommodation.
This concept—related to common-carrier law—applies to companies that hold themselves out to the public but do not
“carry” freight, passengers, or communications. See, e.g., Civil Rights Cases, 109 U. S. 3, 41–43 (1883) (Harlan, J.,
dissenting) (discussing places of public amusement). It also applies regardless of the company’s market power. See,
e.g., 78 Stat. 243, 42 U. S. C. §2000a(a).
Thomas went on to say that there is a strong case for lawmakers in Congress to impose restrictions on the ability of social media platforms to censor their users.
The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms
The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him,” wrote Thomas. “But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms.
Thomas made several references to the work of law professor Adam Candeub, an expert on antitrust, free speech, and the internet who has worked on free speech cases against Twitter.
In a comment to Breitbart News, Candeub welcomed Thomas’ opinions.
“Justice Thomas’s statement is an encouraging sign that the federal judiciary–as well as legislatures–will look carefully at the legal status of social media,” said Candeub. “Never in our history has our country handed over to private firms control over dominant communications networks without requiring obligations to serve all citizens.”
