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Justice Clarence Thomas has, for a second time recently, rung the alarm bell about the tyranny of Big Tech. Instead of empty posturing, like every Senator and Congress-critter, Justice Thomas paints a road map for legal strategies and arguments to put the tyrants firmly under controls that restore our Constitution. Justice Thomas just needs the right case and three men and a woman of courage to join him.
Justice Thomas wrote his latest concurring opinion in the context of a case against President Trump, where a lawyer alleged President Trump violated the Constitution in blocking this individual from @realdonaldjtrump on Twitter. The case being brought against the president, the name of the case, when it was dismissed as moot by the U.S. Supreme Court in the first week of April 2021, had changed to BIDEN v. KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIV. Justice Thomas points out that “public forum” law does not fit well with online platforms. He then outlines two other doctrines that have a long legal history of application to private businesses: “common-carrier law” and “public accommodation law.”
If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude. Historically, at least two legal doctrines limited a company’s right to exclude.