Supreme Court Justice Clarence Thomas’s recent concurring opinion in the Biden vs. Knight decision sent hopeful tremors across conservative legal circles and drew condemnation from libertarians. Was Thomas finally laying the groundwork for regulation of Big Tech, which conservatives correctly view as both deeply biased against them and actively biased in favor of left-wing causes?
At first blush, the case primarily concerned First Amendment questions about whether former president Donald Trump (while in office) could block certain individuals or groups from following his Twitter account.1 The Blockees argued that a sitting president should not be able to prevent access to “news” he creates on social media, especially when particular tweets relate to official government business. Yet if Twitter is indeed a constitutionally protected “public forum,” how does the company get away with deplatforming the president of the United States?
No clear answers from the court were forthcoming: since Trump is no longer in office, the court remanded the case back to the Second Circuit to dismiss on grounds of mootness. But Thomas took the opportunity to move past any free speech questions and make a much broader case for Congress to radically rewrite regulations for the modern digital space. In his words, the “principal legal difficulty that surrounds digital platforms—namely, applying old doctrines to new digital platforms is rarely straightforward.” But in the same concurrence, his language appears to argue simply for the application of existing legal doctrines, namely those surrounding antitrust, common carriers, and public utilities regulation. Thus there is a tension between his view that new thinking is required and his default to statutory or bureaucratic approaches to defeat what he sees as de facto tech monopolies:
The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.
Size and dominance in the provision of “essential services” are arguments we’ve heard against everything from railroad trusts to Ma Bell. Yet Thomas’s common carrier analogy is far less accurate for today’s search and social media platforms than it was for tech companies at the birth of widespread internet adoption. In the 1990s, when Congress passed the Communications Decency Act, telephony was the prevailing regulatory model. Internet service providers like AOL provided “pipe” in the form of fiber optic cable, akin to a utility providing water or electricity. Satellite and cellular ISPs would come only later. Search engines and browsers like AltaVista were the on-ramps to this information superhighway. Email companies like Hotmail provided instantaneous worldwide text communication across the old telephone networks. These early internet firms bridged the gap between old analog systems and the emerging digital networks we take for granted now.2 But unlike the AOLs of yesteryear, the biggest tech players today mostly own cloud servers and endless lines of software code, brought to life via websites or social media platforms. Yes, servers can crash due to traffic. But for the most part companies like Facebook and Twitter resemble neural networks more than pipelines. And who knows what the rapidly evolving technology landscape will look like even five or ten years from now?
This is precisely why a sclerotic federal bureaucracy ruling over Silicon Valley is the last thing we need, despite Thomas’s valid concerns (in my view). Contra the CDA, and contra Justice Thomas, common law tort and contract actions are the pragmatic and just approach to address harms caused by tech companies. As I argued in “A Tort Law Approach to Fighting Big Tech,” long-standing legal concepts like equitable estoppel, conversion, fraud, and waiver are available and malleable. Libertarian legal theory—rooted in natural law, property, and restitution—relies on common law “discovery” rather than positive law edicts. Ever-evolving common law, highly temporalized and localized, provides the best mechanism for determining what actions by tech companies should give rise to legal liability. Stealing a horse in 1800s Tombstone, Arizona, is different than stealing a horse in 2021 Middleburg, Virginia: the former may have left the victim dead in the desert and the perpetrator ordered whipped by an exceedingly unsympathetic jury. Today, deplatforming a celebrity from social media or unbanking a small business owner may leave them metaphorically stranded in the desert. In both cases societal and technological evolution should compel us to adjust our ideas of harm and proportionality. Shouldn’t common law, rather than rigid and highly political statutory or regulatory frameworks, give us better outcomes?
The larger question for libertarians is whether their existing conceptions of property rights, harms, torts, and free speech still work in a thoroughly digital era. Principles may not change, but facts and circumstances certainly do. Rothbard’s strict paradigm for what ought to constitute actionable force, especially as discussed in part II of The Ethics of Liberty, requires some kind of physical invasion of person or property. In doing so, Rothbard necessarily distinguishes between aggression (legally actionable) and the broader idea of “harm.” The former gives rise to tort liability in Rothbardian/libertarian law; the latter is part of the vicissitudes of life and must be endured. Theorists like Professor Walter Block and Stephan Kinsella have expanded on this “physical invasion” rule, applying it to everything from blackmail to defamation to (so-called) intellectual property. Aggression against physical persons or property creates a legally actionable claim, mere harm does not.
But Rothbard’s bright-line rule seems unsatisfying in our digital age. If anything, the complexity of modern information technology and the pace of innovation make the case against bright-line tests. For one thing, the sheer scale of instantaneous information ought to inform our view of aggression vs. harm. A single (false) tweet stating “famous person X is a pedophile” could reach hundreds of millions of people in a day, ruining X’s life forever. This is a bit worse than a punch to X’s nose in a bar fight, to put it mildly. Moreover, physical trespass against property takes on an entirely different form when said property is intangible, e.g., Twitter’s platform and servers. There is a difference, at least in scale, between Donald Trump occupying a tiny sliver of data storage (at almost no additional marginal cost to Twitter) and Donald Trump occupying the lobby at Twitter’s headquarters. Again, surely the best argument is to let naturally evolving common law grapple with these questions. Yes, we don’t have private common law courts, and yes, we have a gargantuan statutory overlay at both the federal and state levels. But we ought to argue for the underlying principle of evolving, discovered law—and advocate for legislatures to get out of the way of private litigating parties and juries.
Common law tort and contract doctrines, not a hopelessly befuddled Congress or agency bureaucrats, can regulate Big Tech. But libertarians and conservatives should broaden their conceptions of tort and contract remedies, and support the evolution of what constitutes harm in a digital era. “Private companies” that openly deplatform, impoverish, and unperson dissident voices are waging a war of attrition. Those inclined to fight back should look to courts rather than legislatures, and they don’t need novel legal theories to do so. Common law tort and contract will do just fine.
1.In what universe does “Congress shall make no law” apply to presidents? Our universe, apparently. And is political speech really much of a virtue, in the sense of securing individual liberty? Property rights, to the extent they are respected, anyway, yield very tangible benefits for average people. It is less clear whether so-called political rights (voting, speech, petition) have done much good for the modern West at all—look at the people who keep getting elected, for starters!
2.Since all of this was new, the authors of the Communications Decency Act reasonably decided these nascent companies should not be legally liable for the misdeeds or defamatory content produced by their users. After all, if two individuals enter into a criminal conspiracy over AT&T’s phone network, we don’t charge AT&T as a coconspirator. And in stark contrast to the social media companies of today, early ISPs and search engines exercise almost no oversight over content whatsoever, much less editorial oversight. They were truly neutral platforms.
Still, the CDA’s chief mechanism for promoting a largely unregulated internet—Section 230—not only provides certain classes of tech companies with immunity from federal suits, but also preempts certain kinds of cases from being heard in state courts. This was and is constituionally shaky, as Congress has no business telling state courts what kind of lawsuits they may hear.
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Author: Jeff Deist
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