This article is part of the Free Speech Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the ways technology is influencing how we think about speech.
On Monday morning, Justice Clarence Thomas all but endorsed a fringe legal theory that would sharply limit social media companies’ ability to moderate content on their own platforms, stripping them of their own First Amendment rights to dissociate with speech they dislike. This radical idea has no basis in the Supreme Court’s constitutional jurisprudence—but it is popular among Republicans who accuse social media companies of censoring conservative speech. Thomas appears to have waded into the fever swamps of right-wing paranoia and come out with the conviction that courts and Congress must bring Big Tech to heel by jettisoning basic constitutional principles. This view would seem to conflict with the justice’s belief that corporations hold a First Amendment right to anonymously spend unlimited amounts of money influencing elections, but in the clash between Thomas’ legal tenets and (likely) political persuasions, partisan hackery has won out.