CLARENCE THOMAS DECLARES WAR ON BIG TECH.

• Author: Root, Damon

IN 2003, REASON named Clarence Thomas one of the magazine's "35 Heroes of Freedom" because the Supreme Court justice had proven himself "a reliable defender of freedom of speech in such diverse contexts as advertising, broadcasting, and campaign contributions." Alas, Thomas' recent statements in support of greater government control over "digital platforms" such as Twitter and Facebook have somewhat tarnished his First Amendment bona fides.

In April, Thomas joined his fellow justices in ridding the Supreme Court of a lingering legal dispute over the propriety of then-President Donald Trump's decision to block various critics on Twitter. With Trump out of the Oval Office, the Court said in Biden v. Knight First Amendment Institute (formerly Trump v. Knight First Amendment Institute), the case was now moot.

Thomas agreed but did not let the matter rest there. In a solo concurrence, he lamented what he called the "unprecedented... concentrated control of so much speech in the hands of a few private parties." Yes, Trump prevented "several people from interacting with his messages," Thomas wrote. But Twitter "removed him from the entire platform, thus barring all Twitter users from interacting with his messages." For Thomas, the takeaway was as troubling as it was obvious. "As Twitter made clear," he wrote, "the right to cut off speech lies most powerfully in the hands of private digital platforms."

The justice then delivered what amounted to a regulatory call to arms against those platforms. "Part of the solution" to the "problem" of "private, concentrated control over online content and platforms available to the public," Thomas wrote, may be found in "two legal doctrines" that "limit the right of a private company to exclude."

The first doctrine, he explained, involved "common carriers," such as railroads and telegraphs, which have historically been required "to serve all comers." The second involved "places of public accommodation" or amusement, such as inns, restaurants, and theaters, which have generally been forbidden from denying service to certain categories of people. "The similarities between some digital platforms and common carriers or places of accommodation," Thomas wrote, "may give legislators strong arguments for similarly regulating digital platforms."

But these arguments may not be quite as strong as Thomas thinks. For one thing, today's social media enterprises neither look nor act much like traditional common carriers...