by Jay Whig
It is not often that a concurring opinion of the Supreme Court calls for in-depth comment, but Justice Thomas’ opinion, in Joseph R. Biden Hr., President of the United States, et al v. Knight First Amendment Institute at Columbia University, et al., is an exception.
The case arises out of the suit by Knight First Amendment Institute at Columbia University against former president Donald Trump. Knight sued Donald Trump on First Amendment grounds for blocking Knight from accessing the comment thread of Trump’s Twitter feed.
The Supreme Court vacated the Second Circuit’s decision as moot as a result of the change in the administration. No more needed to be said. Yet in his concurrence, Justice Thomas spontaneously examines the “legal difficulties around digital platforms.”
Thomas foretells, “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure as digital platforms.”
What does Thomas mean by “highly concentrated, privately owned information infrastructure”? What does he mean by “no choice”? Who does he mean by “we”?
The Trouble with Monopolies
Let’s rewind 420 years. In 1600, the English crown formed a joint-stock company, which we learned about in school, called the East India Company. A chartered monopoly, the East India Company had the exclusive right to trade with all eastern countries.
The East India Company grew to great success under the protection of the British crown, which permitted it to raise private armies and navies, coin money, conquer and administer territory, and expand its interests by bargain and by bombardment, as the trading monopoly forced the world to accommodate its interests.
It earned these rights by generating enormous streams of taxable revenue, which were used to finance the English king’s interests, as the king saw them, in war and peace.
It turns out social media monopoly is not the first monopoly to trouble Americans. The taxation of tea delivered by the East India Company, revenue that was used to discharge debts from the Seven Years War—the French and Indian War, as Americans called it—was the impetus behind the largely peaceful storming of East India vessels in Boston Harbor which we call The Boston Tea Party.
Monopolies endure only when tolerated by power; they only exist where they serve entrenched political interests
Fast forward to today. While most of the Right is on the lookout for cultural communists, not since the East India Company have state interests and arbitrary elite power been so aligned with mercantilist, monopolistic interests. Thanks to the income tax, the administrative state does not need monopolies, information or otherwise, to raise revenue. But a network of powerful allies—flying Gulfstream jets to Aspen and Davos on the wealth created by our modern globalist economy, which flows to an ever-narrower band of elite political actors, technocrats, and manipulators of financial capital—do need the money. Protecting these interests requires other powers, namely the power to control speech.
By “concentrated, privately owned information infrastructure such as digital platforms,” Justice Thomas means speech monopolies.
Thomas says “we will soon have no choice but to address how our legal doctrines apply.” Thomas does not say why we will have no choice. He does not say we are at risk of losing our political freedom—although the context, the suppression of the speech of former President Trump, whose account “Twitter has permanently removed . . . from the platform” suggests that is a risk bearing down on Americans. Perhaps Thomas means competing political powers will not and cannot tolerate a private interest playing political power’s game with independence forever.
Who’s Responsible?
Which brings us to the “we.” When Justice Thomas says “we” he cannot possibly mean the Supreme Court alone, because the Supreme Court exists only to resolve cases in controversy. Its power to create new legal theories to regulate new industries, whether from whole cloth or by application of old theory to new facts, is, doctrinally and practically, sharply limited.
“We” is thus many people. It is the Supreme Court. It is also Congress, the statehouses, and governors. It is even the monopolists themselves, because they are meddling with elements they are in no position to master for long. And, one cannot escape the suggestion, “we” is ultimately you. “We” is perhaps, “We, the People.”
Why do I attribute such alarmism to an otherwise prosaic concurring opinion? Because in a concurring opinion for remand in a moot case relating only to Twitter, Justice Thomas chose to call out by name Facebook, Google, and Amazon. Thomas points a finger at essentially the entire universe of internet information monopoly.
To frame the problem, Thomas suggests that these enterprises are “common carriers,” which traditionally have protections from liability arising from the people, goods and information they carry. Common carriers, Thomas observes, also have legally imposed responsibilities, namely to carry all people, goods, and information without discrimination.
When a telephone line is used to commit a crime, the telephone line owner and operator—the common carrier—is not responsible for the crime. Wire fraud falls on the person originating the criminal information. The owner and operator of the telephone line is responsible for transmitting the information without discrimination. “Congress,” Justice Thomas observes, “ . . . has given digital platforms ‘immunity from certain types of suits’ . . . but has not imposed corresponding responsibilities, like nondiscrimination, that would matter here.”
So there it is. Read Thomas’s opinion, between the lines, with care. Political power has tolerated this “concentrated, privately owned infrastructure” because it has believed that through this infrastructure it could either persuade by publishing speech it promotes and, that failing, suppress speech it opposes.
The Supreme Court, Congress, statehouses, but above all you, Justice Thomas warns us, will soon have no choice but to do something about it.
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J. Whig is an attorney practicing in New York and a resident of Connecticut specializing in insolvency and restructuring. Opinions are his own.
