It is, I think, “amusing” to expect intellectual consistency from a man who, like four other unscrupulous “conservatives”, found that George Bush had a constitutional right to the presidency, come hell or high water, in the very worst Supreme Court decision ever, Bush v. Gore, whose multiple hypocrisies were ably deconstructed back in the day by U of Chi law professor Geoffrey R. Stone, but Reason dude and prime “originalist” Damon Root is nothing if not self-deceiving gullible optimistic. In a recent post for Reason, “Clarence Thomas Declares War on Big Tech”, poor Damon registers shock and dismay that Justice Thomas, in a recent solo concurrence to the Court’s decision declaring “moot” a case originating in a dispute over whether then President Donald Trump could block critics from commenting on his Twitter posts, Thomas went on to bemoan, apropos of nothing, the “unprecedented … concentrated control of so much speech in the hands of a few private parties” [Damon’s ellipsis]—such parties being, obviously, Twitter and Facebook.
Replies Damon, “Like a number of other modern conservatives, Thomas seems to think that Twitter and other tech companies are effectively censoring right-of-center views. But Twitter is a private entity with First Amendment protections of its own and is thus under no obligation to share its soapbox. Thomas' approach, by contrast, would trespass the Constitution by forcing the company to play host to speech that it does not want to be associated with.”
So, obviously, Thomas is down with bending the Constitution to allow the Court to force private entities to open their vast information distribution networks to anything anyone would want to post—pornography, racism, anti-Semitism, you name it—and Damon is right to call him on it. But there’s more to it than that. Thomas is doing all this rewrite to further the interests of one individual, Donald Trump, a man who knows no other law than his own will. Thomas is so desperate to defeat the forces of modern secular liberalism that he’s willing to corrupt the Constitution on behalf of the man who would destroy it. Some “conservative”!
Afterwords
I previously remarked on Justice Thomas’ willingness to violate his oft proclaimed principle of obedience to the will of the “founders” whenever they said something he didn’t want them to say. In a recent case, Thomas rejected the interpretation of the eleventh amendment of the Constitution given by the Court in its first major decision, Georgia v. Chisolm , “explaining” that the Court “blundered”. Well, a refutation can’t get any more convincing than that!
UPDATE
Reason’s Elizabeth Nolan-Brown links to this article by Kir Nuthi giving Clarence’s bad idea a thorough beatdown: “Not only is it an unconstitutional solution, its design to work around First Amendment jurisprudence will almost certainly make the internet worse, not better, for conservatives. Common carriage will inch the internet towards an online ecosystem devoid of family-friendly options and teeming with the worst humanity can offer— including the very content conservatives hate like pornography, indecency, and profanity.”
