On Monday, Justice Clarence Thomas announced that the Supreme Court soon will have to put an end to Big Tech tyranny. Amen. If the high court fails to act, it could mean the end of free speech in the 21st century and the shriveling of our constitutional rights to mere “paper rights” — still there on paper but functionally hollowed out.
Thomas cited the crisis problem of social-media platforms like Facebook and Google wielding unlimited power to censor users whose views they don’t like. His opinion offers hope at a time when Democrats controlling Congress are demanding that tech giants censor more. On March 25, Democrats on the House Committee on Energy and Commerce ordered tech CEOs to silence views that “undermine social-justice movements.”
Thomas’ announcement came in the context of a case involving former President Donald Trump. In office, Trump occasionally blocked his Twitter critics, and some of those critics sued, claiming the president’s Twitter account is a public forum. The high court ruled the case is now moot, because Trump is out of office. Thomas concurred — and agreed with a lower court holding that Trump had violated his critics’ First Amendment right to be heard.
But Thomas said “the more glaring concern” isn’t what Trump did to a few critics, but rather the power of tech giants to censor or ban users entirely, even the leader of the Free World. The justice expressed astonishment that Facebook and Google could remove Trump’s account “at any time for any or no reason.”
Wrote Thomas: “One person controls Facebook . . . and just two control Google.” Three people, in other words, have the power to disappear any of us from the digital public square, even a commander in chief. The Supremes, Thomas concluded, must rein in this unaccountable tyranny.
Big Tech apologists argue that private companies are free to censor as they please. And it’s true that the First Amendment prohibits only government from silencing viewpoints. But private ownership is never the beginning and end of constitutional analysis, not when there is so much at stake.
As Thomas showed, these companies are more like common carriers or public utilities than private companies. And they must be regulated as such: AT&T can’t refuse to open a phone account for you or limit your conversations based on your worldview. Likewise, Southwest Airlines can’t pick and choose who rides its aircraft based on their opinions about transgenderism or #Russiagate. Yet the tech giants get to do exactly that. Why?
Thomas also likened Big Tech to “public accommodations,” such as hotels and baseball stadiums, which are legally required to serve everyone and not discriminate.
Nor did Thomas buy free-market absolutists’ argument about competition limiting Big Tech tyranny. He pointed to the “substantial barriers to entry” facing newcomers. The fate of Parler proves the justice’s point. When the Twitter alternative offered a censorship-free platform, Big Tech colluded to crush it.
We’re facing a new form of censorship, in some ways far more sinister than the state-directed variety. Democrats and their media allies are happy to deputize Facebook CEO Mark Zuckerberg to censor the deplorables; there is no recourse or appeal, because the people doing the censoring are nameless, faceless Silicon Valley operatives.
And don’t count on President Joe Biden. A staggering 14 of his picks to serve in the transition or in his new government are Big Tech alumni, according to a Daily Caller tally. Indeed, Biden probably owes his presidency in part to Big Tech — which rushed to censor this newspaper’s reporting on the Hunter Files, on the patently false pretext that The Post had peddled “disinformation” or “hacked material.”
It’s salutary, then, that Thomas believes the high court can apply his reasoning without waiting for Congress. Until then, the public will hear only what Silicon Valley wants, and the place is awash with wokesters more dangerous than any college campuses — because these people control the levers of information.
Last week, Lara Trump posted an interview with the former president on Facebook. Immediately, Facebook took it down, explaining that “further content posted in the voice of Donald Trump will be removed.”
Only the high court will restore uncensored discourse, an American ideal. Thomas’ opinion illumines the way.
Betsy McCaughey is a former lieutenant governor of New York.
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