A Surprising Opinion From Justice Thomas May Signal an Ominous Shift on Free Speech

David French
·7 min read
Swearing In Of Supreme Court Associate Justice Amy Coney Barrett
Swearing In Of Supreme Court Associate Justice Amy Coney Barrett

Clarence Thomas, associate justice of the U.S. Supreme Court, listens during a ceremony on the South Lawn of the White House in Washington, D.C., U.S., on Monday, Oct. 26, 2020. Credit - Al Drago/Bloomberg via Getty Images

A curious thing happened at the Supreme Court a few days ago. One of the justices, Clarence Thomas, broke from his traditional judicial role and weighed in on a matter of public policy. He tried to put his thumb on the scales of a political dispute and floated legislative ideas that would profoundly and negatively impact First Amendment rights. 

The issue is so-called Big Tech censorship. Thomas wrote a concurrence to a Supreme Court decision vacating a court of appeals opinion that had held that Donald Trump violated the First Amendment when he blocked Twitter users from following his account. But since Trump was no longer president (and indeed had been kicked off Twitter entirely), the case was moot. 

Thomas, however, wrote separately to opine not just about the merits of the case itself, but about Big Tech censorship more broadly. He wrote to suggest ways in which legislatures could limit the freedom of tech companies to block or ban people from their sites. In other words, he wrote to suggest ways in which the government can override the liberty of private citizens to manage and moderate speech on their own private platforms.

Related: How should tech companies handle free speech?

The context here is important. Millions of Americans are deeply concerned about the power and reach of America’s largest tech companies (Facebook, Google, Twitter, Amazon, etc.), but their concerns often diverge sharply depending on their partisan affiliation. As a general matter, progressive Americans are concerned that Big Tech censors too little speech while conservative Americans are concerned that Big Tech censors too much.

Many progressives look at Facebook, Twitter, YouTube, and other tech companies and demand that they do more to combat disinformation, conspiracies, and so-called “hate speech”—words or images that are deemed to demean others on the basis of characteristics such as race, ethnicity, sex, gender identity, or sexual orientation. 

Conservatives, by contrast, are deeply suspicious of Democrat-dominated Silicon Valley and demand that companies leave their speech alone. They argue that hate speech policies are vague and biased and that tech companies put their ideological thumb on the scales to favor progressive speech and suppress conservative ideas. 

The two sides are increasingly united in wanting more government regulation. They’re deeply divided as to what those regulations should say. 

But there’s another factor in play—the First Amendment. A long line of precedent, featuring rulings by justices on both sides of the ideological aisle, holds that private corporations possess their own free speech rights. They can speak, advance corporate values in the public square, and give donations to politicians they favor. In the famous words of Mitt Romney, “Corporations are people, my friend.” 

When Major League Baseball pulls its all-star game from Georgia to protest Georgia’s voting law, that’s corporate free speech. When Hobby Lobby resists the Obamacare contraceptive mandate, that’s corporate religious freedom. Newspaper editorials are corporate free speech. So are union endorsements. So are church statements of faith. So are party platforms. In many ways, the American marketplace of ideas can’t properly function without corporate free speech. It represents a key way in which Americans organize and express ideas. 

Make no mistake, social media moderation decisions are free speech. Even the way in which social media companies design algorithms to feature certain kinds of content at the expense of others is a form of free speech. They have created communities that reflect their own private visions of what a marketplace of ideas should look like and how it should function, and the result is a series of apps and websites that have different cultures, different customer bases, and different moderation rules. 

And that’s what makes Thomas’s opinion so constitutionally unsettling. It is not the job of a Supreme Court justice to opine on matters of public policy, but that’s exactly what he did. He described what he called the “problem” of “private, concentrated control over online content and platforms available to the public” then went on to raise “two legal doctrines” that might “limit the right of a private company to exclude.” 

Not only is it improper for a justice to make such a suggestion, the suggestions themselves are deeply problematic. First, he argued that perhaps “common carrier” legal doctrines could be deployed to regulate Big Tech. While there are different definitions of common carrier, they are typically companies that hold themselves out to the public as a means of transporting goods and some forms of information. FedEx and AT&T are modern examples of common carriers. 

But to compare phone service and package delivery to social media is to try to jam a square peg into a round hole. Facebook is a moderated, curated platform that both hosts speech and speaks directly to its users and the public. It’s designed to create communities, not just transmit information. The same goes for every other social media corporation. The communities they create reflect not just the company’s economic interests, but its values as well (including the extent to which it values free expression.)

Social media posts, YouTube videos, and internet comments are more like letters to the editor or op-eds than phone calls or packages. They’re intended or at least available for broad public consumption. The regulatory arguments from right and left are thus often intended to commandeer the speech policies of private corporations to publicly spread (or suppress) ideas against their will. 

Thomas also suggested that “legislatures might still be able to treat digital platforms like places of public accommodation.” Yet public accommodation law, which prohibits most businesses from discriminating against customers, typically protects access on the basis of identity, not expression. If Facebook or Twitter blocked users on the basis of race, sex, religion, sexual orientation, or gender identity (common protected categories under public accommodation law), then the comparison would work. Instead, tech companies tend to block users on the basis of viewpoint or content. Anti-vaxxers come from all races and religions. So too do pornographers or election conspiracy theorists. If the government aims to protect particular ideas, then it’s aiming directly at the expressive autonomy of American citizens—and companies.

Interestingly enough, in other circumstances, Thomas has repeatedly protected corporate free speech, including a right not to deliver another person’s message. Justice Thomas recently authored an opinion that explicitly rejected requiring corporations to deliver a message they despised. Thomas wrote for a five-justice majority that struck down California’s requirement that pro-life pregnancy centers provide notice that the state offered free or low-cost abortions. That same term, he also joined a seven-justice majority that protected the right of another corporation, Masterpiece Cakeshop, to refuse to design a custom cake for a same-sex wedding.

Thomas was also in the majority in one of the most consequential corporate speech cases in modern American jurisprudence, Citizens United v. FEC, which affirmed and protected a First Amendment right to corporate political speech.

To say that tech companies enjoy robust First Amendment freedoms is not to argue that they always exercise those freedoms responsibly. The public record is replete with examples of unfair or biased decision making, but, individually problematic decisions should not obscure a larger reality. We enjoy a greater ability to speak to the public on matters of public concern than we’ve ever enjoyed in the history of the nation. Even as conservatives often claim to live under a Big Tech “tyranny,” right-wing speech flourishes online

Simply put, many Republicans are demanding government intervention—including intervention that could contradict decades of vital First Amendment precedent—to address a “crisis” that does not exist. It’s a shame that Justice Thomas fed unnecessary fuel to a fire that could consume key constitutional freedoms, the same freedoms that have helped provide Americans unprecedented access to the public square.