By Betsy McCaughey April 6, 2021
Supreme Court Justice Clarence Thomas Thomas cited the crisis problem of social-media platforms like Facebook and Google wielding unlimited power to censor users whose views they don’t like. Mark Wilson/Getty Images
On Monday, Justice Clarence Thomas announced that the Supreme Court soon will have to put an end to Big Tech tyranny. Amen. If the high court fails to act, it could mean the end of free speech in the 21st century and the shriveling of our constitutional rights to mere “paper rights” — still there on paper but functionally hollowed out.
Thomas cited the problem of social-media platforms like Facebook and Google wielding unlimited power to censor users whose views they don’t like. His opinion offers hope at a time when Democrats controlling Congress are demanding that tech giants censor more. On March 25, Democrats on the House Committee on Energy and Commerce ordered tech CEOs to silence views that “undermine social-justice movements.”
Thomas’ announcement came in the context of a case involving former President Donald Trump. In office, Trump occasionally blocked his Twitter critics, and some of those critics sued, claiming the president’s Twitter account is a public forum. The high court ruled the case is now moot, because Trump is out of office. Thomas concurred — and agreed with a lower court holding that Trump had violated his critics’ First Amendment right to be heard.
But Thomas said “the more glaring concern” isn’t what Trump did to a few critics, but rather the power of tech giants to censor or ban users entirely, even the leader of the Free World. The justice expressed astonishment that Facebook and Google could remove Trump’s account “at any time for any or no reason.”
Wrote Thomas: “One person controls Facebook . . . and just two control Google.” Three people, in other words, have the power to disappear any of us from the digital public square, even a commander in chief. The Supremes, Thomas concluded, must rein in this unaccountable tyranny.
Big Tech apologists argue that private companies are free to censor as they please. And it’s true that the First Amendment prohibits only government from silencing viewpoints. But private ownership is never the beginning and end of constitutional analysis, not when there is so much at stake.
As Thomas showed, these companies are more like common carriers or public utilities than private companies. And they must be regulated as such: AT&T can’t refuse to open a phone account for you or limit your conversations based on your worldview. Likewise, Southwest Airlines can’t pick and choose who rides its aircraft based on their opinions about transgenderism or #Russiagate. Yet the tech giants get to do exactly that. Why?
Thomas also likened Big Tech to “public accommodations,” such as hotels and baseball stadiums, which are legally required to serve everyone and not discriminate.
Nor did Thomas buy free-market absolutists’ argument about competition limiting Big Tech tyranny. He pointed to the “substantial barriers to entry” facing newcomers. The fate of Parler proves the justice’s point. When the Twitter alternative offered a censorship-free platform, Big Tech colluded to crush it.
We’re facing a new form of censorship, in some ways far more sinister than the state-directed variety. Democrats and their media allies are happy to deputize Facebook CEO Mark Zuckerberg to censor the deplorables; there is no recourse or appeal, because the people doing the censoring are nameless, faceless Silicon Valley operatives.
And don’t count on President Joe Biden. A staggering 14 of his picks to serve in the transition or in his new government are Big Tech alumni, according to a Daily Caller tally. Indeed, Biden probably owes his presidency in part to Big Tech — which rushed to censor this newspaper’s reporting on the Hunter Files, on the patently false pretext that The Post had peddled “disinformation” or “hacked material.”
It’s salutary, then, that Thomas believes the high court can apply his reasoning without waiting for Congress. Until then, the public will hear only what Silicon Valley wants, and the place is awash with wokesters more dangerous than any college campuses — because these people control the levers of information.
Last week, Lara Trump posted an interview with the former president on Facebook. Immediately, Facebook took it down, explaining that “further content posted in the voice of Donald Trump will be removed.”
Only the high court will restore uncensored discourse, an American ideal. Thomas’ opinion illumines the way.
Betsy McCaughey is a former lieutenant governor of New York.
Thomas fires warning shot at media, organizations that lie about conservatives
Court’s ‘double standard’ lacks basis in ‘text, history or structure’ of Constitution
By WND News Services July 3, 2022
David Muir of ABC’s ‘World News Tonight’ tapes a TV interview with Joe Biden on Wednesday, Dec. 22, 2021, in the Cross Hall of the White House. (Official White House photo by Adam Schultz)
[Editor’s note: This story originally was published by The Daily Signal.]
By Hans von Spakovsky
The Daily Signal
President Joe Biden and his liberal compatriots in politics, the media, and social media constantly are crowing about “misinformation.” Although the type of censorship they seem to support is not the answer, reconsideration of the legal standard governing defamation, as Justice Clarence Thomas has urged, might be.
The Supreme Court denied certiorari Monday in the case of Coral Ridge Ministries Media v. Southern Poverty Law Center. In his dissent from the high court’s refusal to accept the appeal, Thomas once again urges fellow justices to reconsider the double standard for defamation that the court established in New York Times v. Sullivan in 1964. Thomas first did so in a longer dissent in 2021 in another case the court refused to hear, Berisha v. Lawson.
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Coral Ridge Ministries, as Thomas explains, is a “Christian nonprofit dedicated to spreading the ‘Gospel of Jesus Christ’ and ‘a biblically informed view of the world.’” In 2017, Amazon told Coral Ridge Ministries that it was ineligible for Amazon’s nonprofit donation program because it had been labeled as a “hate group” by the Southern Poverty Law Center.
The ministry sued the Southern Poverty Law Center for defaming the organization, saying that although Coral Ridge “opposed homosexual conduct” due to its Christian beliefs, it is not a “hate group.” The ministry said it “has nothing but love for people who engage in homosexual conduct” and “has never attacked or maligned anyone on the basis of engaging in homosexual conduct.”
The defamation case was dismissed by the 11th Circuit Court of Appeals because Coral Ridge Ministries is considered a “public figure” and could not prove that the Southern Poverty Law Center had acted with “actual malice” under the New York Times v. Sullivan standard when it made the “hate crime” claim about the ministry.
U.S. Supreme Court Justice Clarence Thomas (Official portrait)
The “actual malice” standard is the issue that Thomas is complaining about.
In New York Times v. Sullivan, the Supreme Court suddenly created a new legal standard that never existed before in defamation law, which had been governed by state law since our founding, claiming this new standard was required by the Constitution.
Does this sound familiar? According to the court, two legal standards govern defamation lawsuits: one for those considered “private” figures or individuals and another, stricter standard for so-called public figures.
If you are a private figure and The New York Times or the Southern Poverty Law Center publishes a lie about you, you simply have to prove that the statement was false and harmed your reputation. The fact that the publisher didn’t know or care that the statement was false is irrelevant.
But if you are a “public figure,” you not only have to prove that the statement was false and harmed your reputation, but that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
And the definition of who is a public figure constantly has expanded since 1964.
As Justice Neal Gorsuch explained in his own dissent from the denial of a writ of certiorari in the Berisha case, in which he joined Thomas in urging the court to reconsider the legal standard in libel and defamation cases, at first “public figures” meant only government officials.
Then, the definition was expanded to “public figures” outside government, then to those who have achieved “pervasive fame or notoriety,” and then to “limited” public figures “who voluntarily inject” themselves or are “drawn into a particular public controversy.”
Today, this definition of “public figure” is so expansive that the only issue is who it doesn’t cover.
As Thomas correctly observes in his most recent dissent, this double standard has no basis in “the text, history, or structure of the Constitution.” The decision in New York Times v. Sullivan “and the court’s [other] decisions extending it were policy-driven decisions masquerading as constitutional law.”
And what has been the result? According to Thomas, and to anyone who has been paying attention to the outrageous lies and misrepresentations—especially about conservatives—that we see regularly on CNN, MSNBC, and other far-left media organizations, some persons and media outlets can “cast false aspersions on public figures with near impunity.”
In the case of Coral Ridge Ministries, the Southern Poverty Law Center “lumped” in the Christian organization with real hate groups such as the Ku Klux Klan and neo-Nazis, Thomas writes. SPLC put the ministry on “an interactive, online ‘Hate Map’ and caused Coral Ridge concrete financial injury by excluding them from the AmazonSmile donation program.”
Under the actual malice standard “this court has imposed,” Thomas writes, “Coral Ridge could not hold SPLC to account for what it maintains is a blatant falsehood.”
Even the supposed logic behind the Supreme Court’s creation of this standard fails. As Thomas explains, the court “provides scant explanation for the decision to erect a new hurdle for public-figure plaintiffs so long after the First Amendment’s ratification.”
One explanation was that false claims against private individuals are more serious that those against public figures, who are fair targets because they “invite attention and comment.” But as Thomas says, the “common law deemed libels against public figures to be … more serious and injurious than ordinary libels.”
Also, Thomas writes, it “is unclear why exposing oneself to an increased risk of becoming a victim [as a public figure] necessarily means forfeiting the remedies legislatures put in place for such victims.”
Thomas and Gorsuch make strong argument about the fundamental unfairness of the “actual malice” standard and the fact that there is no basis for it in the Constitution or our legal history. As Gorsuch wrote in his Berisha dissent:
[O]ver time the actual malice standard has evolved from a high bar to recovery into an effective immunity from liability. … The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. Under the actual malice regime as it has evolved, ‘ignorance is bliss.’
No wonder so many Americans distrust what they hear in the “news.” The public knows that the media can get away with printing or saying just about anything they want, no matter how false or malicious.
[Editor’s note: This story originally was published by The Daily Signal.]
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