Justice Thomas has been the reason for the conservative hope that the Supreme Court might take on Big Tech since Laura Loomer and Freedom Watch requested the court take up a case (which it declined) about the censorship of public figures.
Discussing the important facts brought up by that case, Justice Thomas said:
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.
He then, in April of 2021, boosted those hopes, writing in a case related to Trump and blocking people on Twitter, that:
“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.”
Also on that issue, Thomas hinted that the court, or at least he, might be willing to treat Big Tech companies as common carriers, writing that, as Breitbart reported at the time:
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.
[…]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.
[…]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. 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.
Though that case wasn’t used to treat Big Tech companies as common carriers, something that might help stop their seemingly biased attempts at censorship, Thomas just reinvigorated conservative hopes that the court would step in and reclassify Big Tech companies as a way of stopping the censorship and reflecting their current position as the modern public squares.
That reinvigoration of hopes that the court would step in came this week, when Thomas wrote that:
“Assuming Congress does not step in to clarify §230’s scope, we should do so in an appropriate case.”
His comment on Section 230, which confers immunity on tech platforms that moderate content so long as those content moderation efforts are in good faith, came as part of a case out of Texas, a case which was denied cert, about Facebook moderation and child sex trafficking.
Though cert was denied, Thomas did hint that the court would be willing to take up the issue of censorship, moderation, and Section 230, the main problems conservatives have with Big Tech, writing that:
“We should, however, address the proper scope of immunity under §230 in an appropriate case.”
If the rest of the court agrees, then all it will take is “an appropriate case,” though what would make a case appropriate for that wasn’t said.
Still, by continually indicating that the court might be willing to step in and deal with the issue if an appropriate case is brought up, Thomas is boosting conservative hopes and showing conservatives what the path might be to take on Big Tech in the courts.
This story syndicated with permission from Will, Author at Trending Politics
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