On the court and online, Justice Clarence and Virginia Thomas hit Big Tech

Last week, Virginia Thomas, a conservative activist, sent an email blast to friends and associates asking them to join an “influence network” to raise awareness for a new website fighting “corporate tyranny” and social media’s growing power over political speech.

Five days later, in a concurring opinion for a Supreme Court ruling pertaining to Twitter and former President Donald Trump, her husband, Justice Clarence Thomas, issued a similar warning about America’s social media giants. The unprecedented control “of so much speech in the hands of a few private parties” would soon force the court to address how the law handled the major platforms, he wrote. The threat to free speech was a “glaring concern.”

The one-two punch from the Thomases adds to what remains a major rallying cry for conservatives: a perceived censorship of Republicans by major tech companies, especially in the wake of Trump’s election loss and the deadly Jan. 6 Capitol riot. Twitter permanently removed Trump from the platform days later, citing “the risk of further incitement of violence.” 

It also gives new life to long-standing questions about whether Virginia Thomas’ activism presents a conflict of interest for her husband.

To date, the topic of social media bias has mostly been a political convenience for the right. Most Republican lawmakers who have been given the chance to question tech CEOs in congressional hearings instead use the opportunity to condemn the CEOs without providing much evidence for their complaints, perhaps because there isn’t much. A recent study from New York University professors found that Republican politicians and right-wing media outlets may receive more interaction on social media platforms than do liberals and left-wing outlets.

But that has not quieted the ongoing push from conservatives who often include Big Tech as part of larger concerns about a “cancel culture” and the conspiracy that, as Fox News host Sean Hannity recently put it, Democrats are trying “to silence, cancel any opposition voices.”

On the court and online Justice Clarence and Virginia Thomas

Clarence Thomas’ remarks may signal a new chapter in that effort, and an indication that the fight over social media’s power may end up being a legal, rather than a legislative, one. On Monday, the Federalist, a conservative news site, called Thomas’ remarks “a road map to eliminating rampant social media censorship from online monopolies.”

“Thomas’ not-very-veiled hostility toward big tech is absolutely another aspect of a more general conservative antagonism toward Silicon Valley,” Paul M. Barrett, the deputy director of the New York University Stern Center for Business and Human Rights, and the co-author of the NYU study, said in an interview. “We could have a fight over curtailing protections for social media companies at the Supreme Court as opposed to across the street at Congress.”

Thomas’ opinion this week pertained to the court’s decision to vacate an appeals court ruling that Trump had violated the First Amendment by blocking people from his Twitter account. Thomas argued that it was, in fact, the technology platforms that represented the greater threat to the First Amendment: “[I]f the aim is to ensure that speech is not smothered,” he wrote, “then the more glaring concern must perforce be the dominant digital platforms themselves.”

He made it clear he was talking about more than just Twitter and Facebook, taking aim at two other giants that have often drawn bipartisan criticism. Google, Thomas wrote, “can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Amazon “can impose cataclysmic consequences on authors by, among other things, blocking a listing.”

Thomas’ warnings build on the case he made in a ruling in October, when he urged the court to determine the correct interpretation of Section 230 of the Communications Decency Act, the law that protects tech platforms from legal liability for what users post. His suggestion was that the law had been applied too broadly and needed stricter definitions.

“Justice Thomas seems to be urging lawmakers (federal and state) to pass laws limiting platforms’ ability to exclude certain content or voices,” said Justin Brookman, the head of tech policy for Consumer Reports and a former policy director of the Federal Trade Commission’s Office of Technology Research and Investigation. “It’s certainly legitimate to be concerned about the power that big tech platforms have over the information we consume.”

It’s not clear whether Thomas will succeed in provoking a legal debate over Section 230. But if he could, the ramifications for the tech industry would be significant.

The high court “could potentially revisit interpretations of Section 230 that go back 25 years and just say that the courts got it wrong when they interpreted protections very broadly,” Barrett said. “If you got a restrictive interpretation of Section 230 from the Supreme Court, that could shake up the social media industry even more dramatically than what Congress might end up doing.”

The recent effort by Virginia Thomas might help to fuel that push. In her email, which was obtained by NBC News, the activist and attorney identified the power of social media companies to censor conservatives as the most immediate threat of corporate tyranny. She directed people to a post on the new site, StopCorporateTyranny.org, that called for Facebook and Twitter to “get out of politics.”

The post channeled the unproven argument Republicans have been making for years: that Silicon Valley has a pro-left bias and censors conservatives. 

“Increasingly, Facebook and Twitter have decided to use their platforms as political advocacy tools,” the post said. “They should not be restricting Americans who stand up against the dominant left-wing cultural elites.”

It is far from the first time Virginia Thomas’ activism has overlapped with her husband’s own judicial opinions. A decade ago, judicial ethicists noted that her acceptance of anonymous financial contributions through her nonprofit group could prove problematic for her husband. Justices are required by federal law to recuse themselves from cases in which there is a conflict of interest, including those where their spouses could have a financial interest in the outcome.

It is not clear whether Virginia Thomas has received any financial contributions from Back to Neutral (B2N), the coalition behind StopCorporateTyranny.org. She did not respond to a request for comment. Representatives for the Supreme Court did not respond to requests for comment.

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