In President Joe Biden v. Knight First Amendment Institute at Columbia University, handed down on Monday, the Supreme Court tossed out a lower court ruling which held that, in blocking people on Twitter, President Trump violated their First Amendment rights. The case doesn’t matter: Trump’s no longer president, so the whole thing is moot. What matters is the concurrence written by Thomas, which laid out a roadmap for possible government regulation of companies like Google, Facebook and Twitter.
The thrust of Thomas’s argument:
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. 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.
It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. 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.
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The Epstein position, Sacks thinks, has it right. “Why try to incentivize good behavior by threatening to punish Big Tech? Just require it. That’s what the common carrier solution does.”
I think Sacks’s view of the big picture here is quite convincing:
“When speech got digitized, the town square got privatized and the First Amendment got euthanized. If you can’t speak online — or if your ability to speak online is controlled by a tiny handful of companies with no due process — how do you really have a free speech right in this country any more?” he said. “Imposing a common carrier obligation on Big Tech would prevent these corporations from doing what they are doing now: discriminating on the basis of creed.”
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When Dr. Seuss’s estate discontinued six of his titles over apparent racism, that’s one thing. When eBay decided they would not allow the reselling of those titles? That’s something else.
When 60 Minutes decides to selectively edit an interview with Florida Gov. Ron DeSantis, that’s one thing. But when YouTube decides to delete a video of the governor criticizing the various Covid-19 policies with physicians and scientists? That’s something else.
Big Tech companies insist that they are just removing “disinformation” and “hate speech” from their platforms, but as we’ve seen, these are terms with ever-evolving definitions. Tom Cotton’s June Op-Ed in The New York Times, for example, was literal violence according to more than 800 New York Times staffers. Never mind that Cotton’s argument was one at least 60% of Americans agreed with.
Read the rest – it’s good!