Justice Thomas: Breaking the Big Tech Fortress of Immunity


WASHINGTON, DC – OCTOBER 26: Clarence Thomas, Associate Justice of the Supreme Court, attends the swearing-in ceremony for Amy Coney Barrett, Associate Justice of the United States Supreme Court on October 26, 2020 in Washington, DC, on the South Lawn of the White House is supposed to be. The Senate upheld Barrett’s Supreme Court nomination today by 52-48 votes. (Photo by Tasos Katopodis / Getty Images)

One can usually estimate the extent to which the defenders of the mega information platforms in Silicon Valley believe that the huge web kingdom of their powerful Sith Lords (Facebook, Google, Twitter, Apple, Amazon) is threatened. Her fear becomes clearer as her howl becomes harder. Supreme Court Justice Thomas, whose disagreement, consensus, and disagreement on internet matters has turned into formidable legal work, is one of her favorite targets.

In a Supreme Court statement in which then-President Donald Trump banned some users from viewing his Twitter account, Justice Thomas reiterated the broader issues of internet governance and the contours of individual rights on Monday. While all the judges had agreed that the underlying case was in dispute, Justice Thomas went further in his approval. He suggested that the time may have come for a legislative cure for the way dominant big tech companies wield a staggering amount of control over America’s data and information.

Justice Thomas noted the ironic inequality in repressive power between a president who blocked a small number of users trying to post on his Twitter account and Twitter who shut down the entire Trump account, effectively blocking his 89 million followers from the Reading his posts. Justice Thomas wrote,

Today’s digital platforms offer opportunities for historically unprecedented amounts of speech, including speech from government actors. Also unprecedented, however, is the concentrated control over so much language in the hands of a few private parties. We will soon have no choice but to delve into applying our legal teachings to highly concentrated, privately owned information infrastructures such as digital platforms.

The Silicon Valley Protectorate pushed back. TechDirt, for example, was quick to classify Thomas’s opinion as “weird,” “bizarre,” and “confusing,” including a rude slap when the Associate Justice quoted a legal commentator who merely “implied” there were problems with the section gives 230 of the Communications Decency Act. Section 230 is the sacred legislative relic coveted by Silicon Valley for creating the largely impregnable castle walls of legal protection that surround tech companies.

When Section 230 passed in 1996, Congress could never have predicted the unintended consequences of this law, which protects digital information platforms from most civil liability claims. Over the years, some of these little tech acorns, freed from the limitations of legal responsibility, have grown into giants of trees that are now more like the warlike judicial Ents Lord of the ringsthan the civilized digital information gardens that the authors of 230 envisioned. At least J.R.R. Tolkien’s Ents were moral only in their willingness to fight. The same cannot be said of the Silicon Valley titans.

Take, for example, Judge Thomas’ separate statement of the Supreme Court’s negative review of a decision by the 9th Court of Appeal in the Malwarebytes case in October 2020. Thomas’ statement extensively addressed the shortcomings of Section 230, including a reference to another case where Facebook avoids legal responsibility for possible complicity in the distribution of terrorist content that allegedly contributed to the death and harm of Americans. Such worrying results arose, Thomas argued, because the lower courts interpreted Section 230 to provide technology companies with inappropriately broad protection against litigation.

The Associate Justice cited other dire anomalies and injustices that arose from the year 230, when the American tort law system would normally have given victims their day in court. With section 230, however, this rarely occurs when it comes to content-related decisions of information technology platforms, regardless of whether those decisions involve leaving scandalous, harmful content or removing points of view that they do not like. As a result, these information platforms, among other things, routinely avoid any liability for defamation and defamation, while newspapers and magazines do not. Claims that these platforms owe their users a due diligence not to maliciously suppress conservative content are often rejected by courts in the earliest stages of litigation.

There is no question that the size of Section 230’s legal protection has synthetically fertilized the success and monopoly size of big tech companies. Google controls around 90 percent of online search activity worldwide. Facebook co-founder Chris Hughes lamented the dominant monopoly power the platform has since amassed, writing, “I am disappointed with myself and the early Facebook team that I stopped thinking about how the newsfeed algorithm was ours Changing culture and influencing elections and empowering nationalist leaders. “Twitter may be the big tech giant with the highest turnover, but it has a monopoly over the instant messaging business among professional journalists. In a survey, more than 80 percent of journalists who participated said Twitter was the indispensable tool they rely on to get the latest news, which then becomes the headlines America reads.

Milton Friedman was right when he wrote in his book Free to choose, the classic analysis of the relationship between freedom and the economy that “a monopoly within a country can seldom be established without open and covert state support in the form of a tariff or some other device”. Section 230 is one such “other means” of subsidization that the US government gives technology companies in the form of unprecedented, near-bulletproof legal protection. Not only has it created monopolies over information and opinions, but it may also explain the arrogance of their CEOs.

Over the course of several years, there have been several rounds of hearings in Congress calling the leaders of Facebook, Google, and Twitter into the Houses of Representatives and Senate committees to answer sharp, often acrid, questions. However, your vague, baffled, and noncommittal answers should tell us something. After the sudden dismantling of Facebook and Twitter on both platforms of the New York Post The story of the pre-election Hunter Biden scandal, even the international fact-checking organization, the Poynter Institute – a facility that Facebook relies on for fact-checking – was outraged. Officials questioned whether these two platforms were in fact “impartial” as they claimed. Facebook and Twitter CEOs later apologized lukewarm, but only after the damage was done, of course.

While Google and Facebook are currently under antitrust investigation, the Biden Administration’s Department of Justice and its governing Federal Trade Commission will almost certainly avoid the bigger questions about censoring big tech or suppressing conservative media. Now that Americans get their breaking news on digital devices and internet platforms, there is a real and present danger that our constituents will not be properly and fairly informed. However, traditional antitrust enforcement may not be the solution. Classical theory has defined the harm to consumers in terms of disadvantages in pricing or the availability of products or services – rarely or never in terms of technological suppression of information, let alone the harm to a constitutional republic when citizens and politicians who support them are silenced.

However, this does not mean that American antitrust principles, which have existed for more than a century, are completely inapplicable. Justice Thomas has laid a foundation for examining the legal and political issues facing Big Tech’s monopoly visual controls. He has not and will not get specific, of course, to be sure. By pointing out the problem of market dominance, Justice Thomas opened a door for discussion.

To illustrate this discussion, why shouldn’t the handful of dominant big tech information platforms be burdened with the obligation to apply First Amendment-type principles to their content-related decisions? Why should these principles of freedom of expression not be enforced as a complement to them and not through the creation of comprehensive oversight by the federal authorities by giving ordinary citizens, organizations or companies – private attorneys-general, so to speak – a private right to sue? have been harmed by the malicious repression of these monopolies?

After all, the biggest big tech problems are not about technology in general or technology companies as a form of trade, but about something else: a handful of online information platforms have increased their monopoly power, even the position of an arbiter of the truth who suppresses dissenting voices and has the power, in the words of the Facebook co-founder, to “influence elections”.

Craig Parshall is the senior legal policy and civil liberty advisor to the American Principles Project.

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