Clarence Thomas Shows The Path Forward On Big Tech Opinion

The Big Tech issue is the tip of the spear of the realignment. As has been made painfully obvious the last few years, with last October’s collusive Big Tech assault on the New York Post for its election-season reporting on Hunter Biden’s overseas travails serving as an eye-opening pinnacle, Big Tech is now the ruling class’s catspaw. These modern-day robber barons are willing and able to lend their censorious assistance to the ruling class’s ruthless entrenchment of its ideological and political hegemony. Big Tech, in short, is the leading private-sector appendage with which the Anywheres cow into submission and subjugate the Somewheres.

This emergent reality has caused no shortage of heart palpitations among some of the more “liberal” elements of the American conservative firmament. Conservatives, many were taught, stand for unadulterated laissez-faire and a staunch commitment to deregulating corporate America. What to do, then, when those unshackled big corporations turn around and come after us?

But the historical bromance between the GOP and chamber of commerce-style corporatism has been an obstinate hindrance to reform. Big Tech-skeptical, pro-realignment conservatives have all too often had their legal and policy arguments on such issues as antitrust enforcement and Section 230 reform thrown back in their faces by doctrinaire, limited-government enthusiasts who insist that True Conservatism is synonymous with hands-off private-sector fundamentalism. “Build your own Google!” the corporatists and libertarians have scowled.

On Monday, the most important conservative lawyer in the nation, Supreme Court Justice Clarence Thomas, came out swinging on the side of the reformers. In his concurrence in Biden v. Knight First Amendment Institute, Thomas opined: “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.” Later, after a discussion of the centuries-long history of “common carrier” regulation—in modern times, most often applied to transportation networks like rail and communications networks like telephony—and places of “public accommodation,” Thomas wrote: “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.”

Seemingly speaking directly to regulators and legislators at both the federal and state level, Thomas also added, “If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.” Seldom is a Supreme Court justice clearer and more forthright than that. Finally, in a footnote toward the end of his concurrence, Thomas implied that Section 230 immunity may itself be constitutionally problematic and violative of the First Amendment.

Josh Hammer is Newsweek opinion editor, a syndicated columnist and a research fellow with the Edmund Burke Foundation. He also volunteers with the Internet Accountability Project as a counsel and policy advisor. Twitter: @josh_hammer.

The views expressed in this article are the writer’s own.