Justice Thomas stirs debate over free speech and social media

In a concurrence dismissing a case as moot, Justice Clarence Thomas took the opportunity to suggest legislative remedies to the problem of big tech censorship. He favors laws that allow the government to sideline the First Amendment rights of private citizens to moderate speech on private platforms. In the past Thomas has protected the right of corporations to refuse to deliver another person’s message and in Citizens United v FEC voted for First Amendment rights for corporations. (Time, April 9, 2021, by David French)

High Tech law professor Eric Goldman, Technology & Marketing Law Blog, April 12, 2021, analyzes and refutes Thomas’ arguments and expresses his concern that Thomas gives significant support to those who would use his words to impose censorship. Goldman objects to Thomas’ exaggerating the threat of social media with the words, “the most glaring concern” and “dominant digital platforms.” “I strongly disagree about the MOST “glaring concern” here, writes Goldman, “Twitter lacks the power to order drone killings, separate parents from their children at the border, put a knee on the neck of a suspect for 9 minutes, incarcerate people, impose taxes, garnish people’s wages, or engage in the thousands of other ways that governments can deprive people of their assets, liberty, or life. Compared to the government’s vast power to squelch speech, the power of the ‘dominant digital platforms’ seems puny. Justice Thomas betrays his extraordinary degree of privilege. Due to that privilege, he doesn’t recognize how the truly glaring concern is that the government, fueled by his words, will use its ‘dominance’ to ‘smother’ far more speech than any Internet service ever could.”

Eugene Volokh, Reason, July 5, 2021, is more receptive to Thomas’ attempt to address the standing of social media platforms.

For related FAC coverage, click here, here and here.