Today in the Supreme Court: What’s the real answer to the problem of policing Giant Tech’s content?

Today’s argument before the Supreme Court

Friends,

Today, NetChoice v. Paxton was argued before the Supreme Court.

In it, Texas and Florida alleged that huge internet platforms (which have become so huge they ought to be called Giant Tech) — have grown so powerful that it’s necessary to ensure they don’t discriminate against users or viewpoints they disagree with.

On the other side, three Giant Tech platforms — Meta, X, and Google — claimed they have a First Amendment right to decide what posts and accounts they carry on their websites.

If the justices buy Giant Tech’s argument, they would be granting constitutional protection to nearly anything Giant Tech does — putting these huge platforms beyond the reach of lawmakers and jeopardizing the ability of Americans to control Giant Tech at all.

Lower federal courts have already bestowed First Amendment protection on Giant Tech, leaving the public unprotected.

Last fall, a federal court struck down a California law intended to prevent social media platforms from profiling children. It did so by ruling that collecting data from children is a form of speech protected by the First Amendment. If the Supreme Court takes a similarly expansive view, it could negate all similar efforts to stand up to the power of Giant Tech.

So what will the Supreme Court decide? It was hard to tell from the justices’ questions today, but my betting is that they’ll side with Texas and Florida — and treat Giant Tech platforms as common carriers like railroads or telephone lines. After all, Giant Tech platforms are the information utilities of our time.

Common carriers can’t engage in unreasonable discrimination in who uses them, must charge just and reasonable prices, and must provide reasonable care to the public. Telephone companies cannot reject customers based on what they say or refuse to serve a paying customer. Such “common carriage” laws protect the public’s access to utilities.

A 2021 Supreme Court case (Biden v. Knight First Amendment Institute) suggests where the court is heading. The case grew out of then-president Donald Trump’s decision to block several Twitter users from interacting with his Twitter account. They sued.

The Court of Appeals for the Second Circuit held that the comment threads were a “public forum” and that then-president Trump violated their First Amendment rights by using his control of the Twitter account to block the plaintiffs from accessing the comment threads.

Because of the change in administrations, the case was deemed moot. But Clarence Thomas wrote a concurring opinion in which he cited a 1914 Supreme Court ruling that a private company could become a “common carrier” when “a business, by circumstances and its nature … rise[s] from private to be of public concern.”

Thomas argued that “some digital platforms are sufficiently akin to common carriers … to be regulated in this manner,” adding that “[w]e will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”

Other justices have made similar remarks.

If the Supreme Court decides Giant Tech platforms are “common carriers,” then responsibility for policing their content would shift from these corporations to government.

But is there any reason to trust the government to do a better job policing content than the giants do on their own? (I hate to imagine what would happen under a Tump administration. Or, for that matter, under Texas or Florida.)

There’s a third and better option to the bleak choice between leaving content policing up to the giant unaccountable corporations or to a polarized government.

It’s to address the underlying problem: the power of Giant Tech.

The way to do this is to apply the antitrust laws and break the companies up: Require them to share their operating systems with competitors — essentially making them open source.

My guess is that this is where we’ll end up, eventually. There’s no other reasonable choice.

As Winston Churchill is reputed to have said: “Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.”