Good morning, it's Wednesday, June 23, 2021, a lovely day on the East Coast and the 73rd birthday of Clarence Thomas.
In a less polarized world, the accomplishments of this man would be universally acclaimed, irrespective of one's politics: Thomas was born into grinding poverty in a small Georgia town and raised by a single mother and her parents. His maternal grandfather emphasized the value of physical labor -- Thomas began working on the family farm when he was 10 -- and education. Raised Catholic, he attended parochial schools, went to college at Holy Cross and Yale Law School and, in 1991, became the second African American to serve on the U.S. Supreme Court.
By that time, however, Roe v. Wade had turned high court appointments into pitched battles between Republicans and Democrats. Until that 1973 decision, abortion had not been a partisan issue. But by the time George H.W. Bush announced his intentions to elevate Clarence Thomas from the First Circuit Court of Appeals, both major political parties -- and the Supreme Court itself -- occupied opposing warring camps over it. It didn't help that the relatively inexperienced Thomas was being named for the seat vacated by a liberal hero, Thurgood Marshall, a lawyer who had achieved fame and legal acclaim even before being named to the nation's highest court.
As if that wasn't enough, at the 11th hour, accusations of sexual harassment were leveled at Thomas, allegations that Judiciary Committee Chairman Joe Biden handled with uncertainty. And so even today, when Clarence Thomas' name is mentioned, many liberals think "Anita Hill," while the phrase that runs through conservatives' minds is "high-tech lynching."
But that was three decades ago, so let's look ahead. Sooner or later, the Supreme Court will be forced to tackle the question of censorship by monopolistic tech giants Facebook, Twitter, Apple, and Amazon.
Until now, most legal scholars have understood the First Amendment to mean protections against government, and not private companies, curbing free speech. "The bottom line remains that Facebook is a private company, and it has its own First Amendment rights to decide what it wants to put on its service," free speech scholar Ken Paulson recently told USA Today.
But there are exceptions here and there: The Supreme Court itself has carved out exemptions for company towns (a 1946 ruling known as Marsh) and shopping malls (a 1980 case). As Facebook and Twitter ban a former U.S. president from their platforms -- while censoring discussion of issues ranging from election integrity to COVID treatments -- the issue of free speech appears once again to be headed for judicial oversight.
That's where Clarence Thomas comes in. In an October 2020 case and again two months ago while weighing a case brought by critics whom President Trump had blocked on Twitter, Thomas has wondered aloud whether the social media giants wield too much control over America's political discourse.
"Today's digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors," he wrote. "Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms."
Carl M. Cannon is the Washington bureau chief for RealClearPolitics. Reach him on Twitter @CarlCannon.