“Chief” Justice Thomas, today, in Biden, President of the United States, et. al. v. Knight First Amendment Institute at Columbia University, et. al. laid the foundation for a potential AT&T-style-Baby-Bell break-up for the social media tech-monopolies which have become the modern-day public square or disseminators of crucial information.
These tech companies have become the arbiters of information vital to the public— enormous Google currently controls 90% of internet search. Such power over our public squares may very well soon come to an end of the accrued centralized control of internet information—courtesy of Justice Thomas’ concurring opinion.
The Supreme Court of the United States dismissed the Biden case as moot. The High Court then vacated the judgment and remanded the Second Circuit of the United States to dismiss the case. Because this lawsuit was originally filed against then President Trump, in his official capacity. This leaves Justice Thomas’ opinion in a powerful place for lower federal courts to use in future lawsuits against tech giants.
To quickly recap, former President Trump was sued in his official capacity for blocking people on his Twitter account. This account, in court, was proved President Trump had “limited control” of. However, what was proved by Twitter and other giant social media is they have more power than even the government.
Thus, Justice Thomas writes, Twitter could not possibly be a public forum that is a “government-controlled space” protected by the First Amendment and Section 230. Justice Thomas stated “[a]ny control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service, to remove the account ‘at any time for any or no reason.’ Twitter exercised its authority to do exactly that.” (Emphasis ours.)
The way the Supreme Court has interpreted constitutionally protected “public forums” in its precedent, according to the concurring opinion, is completely at odds with Section 230 of the Communications Decency Act and modern tech giant’s prior conduct following the November 3 2020 election. Moreover, it is wholly at odds with certain politicians’ conduct. This means lower courts, with the proper legal cases brought, may use this persuasive authority in their holdings.
With Justice Thomas’ recent majority opinion in Uzuegbunam, those affected by unconscionable actions by Twitter and others, such as Donald J. Trump, may now bring cases in lower federal courts. With the federal judiciary recently restructured with constitutional originalists and pending legislation in Florida, this dog may find some bite.