Back in 2017, Columbia University’s Knight First Amendment Institute sued President Donald Trump for blocking seven of his followers. Apparently they had criticised him, and the thin-skinned owner of the @realDonaldTrump account retaliated by blocking them. This made it impossible for the seven followers to read Trump’s tweets or to respond to them.

“Now I have extremely limited access to the public forum where I once could be heard,” complained a young doctor, Eugene Gu. “I feel cut off and as though I’m being treated like an outsider in my own country.”

Four years later, after working its way through a district court and the 2nd Circuit Court of Appeals, the case ended up before the US Supreme Court. And fizzled out.

Earlier this week SCOTUS vacated the decision of the 2nd Circuit in favour of the Knight First Amendment Institute. In other words, it told the lower court to dismiss the case because it is moot, that is, no longer relevant. Trump is no longer POTUS. That took all of two sentences.

What makes the decision interesting, however, is a 12-page comment by Justice Clarence Thomas in which he opens up avenues for reining in Big Tech’s social media platforms.

As everyone knows, Twitter deplatformed President Donald Trump due to “the risk of further incitement of violence” after the Capitol Hill riot. This is just the most notorious example of banning individuals or organisations. The ambitions of Parler, a conservative rival to Twitter, were scuppered when Amazon refused to allow it to use its servers.  

As blogger Andy Yen notes: “Once thought of as an untameable jungle of free speech, the internet is now a walled garden, increasingly monitored and controlled by a handful of unregulated monopolies. The gatekeepers to the walled garden, companies like Google, Amazon, Facebook, and Apple, serve as the judge, jury, and executioner for the internet.”

Whatever you think of Donald Trump, Twitter’s impudence in silencing him is all but a declaration of war on free speech. It’s not a personal vendetta of Twitter’s CEO, Jack Dorsey, either. Facebook, YouTube, Twitch, TikTok, SnapChat, PayPal, Venmo, Stripe and GoFundMe piled on, too.

This disturbs Justice Thomas. In his lengthy comment, he acknowledges the legal difficulties: the gatekeepers are private companies offering a service; they should be free to make their own rules and enforce them. On the other hand, they have created something that looks very much like a public utility.

The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least.  Mr. Trump blocked several people from interacting with his messages.  Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages. Under its terms of service, Twitter can remove any person from the platform—including the President of the United States—“at any time for any or no reason.”  Twitter Inc., User Agreement (effective June 18, 2020).

It’s not just Trump whose free speech rights are at risk. Under the current state of the law in the US, Big Tech can effectively deplatform anyone, anytime. Justice Thomas observes:

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. 

What is the way forward? This is the arcane specialty of lawyers. But Justice Thomas highlights two legal doctrines which might be useful.

One is to define social media as “common carriers” which are required to serve all comers. Another is to regard them as “a public accommodation”. On this basis in the past the courts have denied a company’s right to exclude certain kinds of patrons.

Justice Thomas believes that Big Tech could be classified as common carriers. Like telegraphs, they are communications networks carrying information from one place to another. The analogy becomes stronger, he says, if you bear in mind that control of the networks is highly concentrated. One man, Mark Zuckerberg, for instance, controls Facebook.

It could be objected that no one is forced to use Twitter, Facebook or Google. But Justice Thomas observes that

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.

This circumstances of this particular case did not offer SCOTUS a chance to rule on the social responsibilities of Big Tech. But Justice Thomas’s thoughtful critique traces a path through the legal thickets.

What’s becoming clear is that social media is both a vehicle for free speech and a powerful weapon for shutting it down. We have arrived at a new era in communication and we need new legal concepts to capture the new realities of a connected world.

John Stuart Mill, a shrewd political observer if not always a reliable guide, wrote in his famous treatise On Liberty:

[Society] practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.

Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them. (John Stuart Mill, On Liberty, Chapter 1)

The Greeks had an ugly word for rule by mobs which ran roughshod over civil rights and intimidated legitimate authorities: ochlocracy. Today’s woke warriors, with their weaponised deplatforming, cancelling, and Twitterstorming, are reviving the spirit of those savage ochlocrats. To keep them from destroying true democracy, we need a better and more powerful legal framework. Justice Clarence Thomas has done us all a favour.

Michael Cook

Michael Cook is the editor of MercatorNet.