Clarence Thomas

Clarence Thomas Shows the Path Forward on Big Tech | Opinion

A realignment, as many have observed, is now unfolding in American politics. The Republican Party and its conservatism is now the home for the “Somewheres,” to borrow the term from David Goodhart’s 2017 book, The Road to Somewhere, which refers to the more traditionalist, hardscrabble patriots of the American heartland. The Democratic Party and its…

A realignment, as many have discovered, is now unfolding in American politics. The Republican Party and its own conservatism is now the house for the”Somewheres,” to borrow the term from David Goodhart’s 2017 book, The Road to Somewhere, which describes the traditionalist, hardscrabble patriots of the American heartland. The Democratic Party and its own increasingly hard-left progressivism, by contrast, is your home for the”Anywheres”–people highly educated, mobile,”woke” elites containing the bicoastal ruling class.

The Big Tech issue is the tip of the spear of the realignment. As has been made painfully evident the past couple of years, with last October’s collusive Big Tech attack about the New York Post because of its election-season reporting on Hunter Biden‘s overseas travails serving as an eye-opening pinnacle, Big Tech has become the ruling class’s catspaw. These modern-day robber barons are willing and ready to lend their censorious assistance into the ruling class’s ruthless entrenchment of its ideological and political hegemony. Big Tech, in a nutshell, is the top private-sector appendage by which the Anywheres cow into submission and subjugate the Somewheres.

This emergent reality has caused no lack 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?

The answer, for many, is to carefully reassess what exactly it is we stand for as conservatives–especially as it pertains to unaccountable, concentrated corporate titans who control the 21st-century equivalents of the old public square. To wit, there is nothing particularly”conservative” about a zealous, dogmatic refusal to countenance state activities that might better channel the material curation and moderation decisions of a behemoth such as Amazon–that has an 80 percent market share in digital publications –toward the common good of the American polity. Ditto Google, that has a nearly 90 percent market share in online search.

But the historic bromance involving the GOP and chamber of commerce-style corporatism was an obstinate hindrance . Big Tech-skeptical, pro-realignment conservatives have all too frequently had their legal and policy arguments on these issues as antitrust enforcement and Section 230 reform thrown back into their faces by doctrinaire, limited-government enthusiasts who insist that True Conservatism means the same thing as hands-off private-sector fundamentalism. “Build your own Google!” That the corporatists and libertarians have scowled.

Supreme Court Justice Clarence Thomas
Supreme Court Justice Clarence Thomas
Tasos Katopodis/Getty Images

On Monday, the very important conservative lawyer in the country, Supreme Court Justice Clarence Thomas, came out swinging on the face 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 this centuries-long history of”common carrier” regulation–in modern times, most frequently applied to transportation networks like rail and communications networks such as telephony–and areas 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 conclusion of his concurrence, Thomas suggested that Section 230 immunity could itself be constitutionally problematic and violative of the First Amendment.

With the imprimatur of America’s greatest living conservative–who happens to be one of the greatest Supreme Court justices ever–that the path forward for the Big Tech-skeptical Right is apparent. We can, and need to, utilize all tools necessary in our policy and legal arsenal to rein in the Big Tech oligarchs before it’s too late. Section 230 reform and antitrust enforcement against the most egregious offenders of concentrated power, such as Google and Amazon, are nice places to start. But as Thomas urges, and as a lot of us have argued at least because the New York Post hullabaloo last Octoberwe should think even larger than that. It’s time to get serious about applying”common carrier” regulatory frameworks or”public accommodation” Civil Rights Act statutory frameworks, also to reclaim our self-governing democracy from the Silicon Valley technocracy before it’s too late.

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

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


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