Clarence Thomas is Right About Big Tech

Published April 19, 2021

National Review Online

How should conservatives think about the intersection of property rights, government regulation, and Big Tech? Part of answering this question requires us to gain a better understanding of the American legal tradition’s sources, recovering them from recent distortions. Justice Clarence Thomas recently sought to educate us on just this.

In his concurring opinion in Joseph Biden v. Knight First Amendment Institute at Columbia University, Justice Thomas noted that First Amendment doctrines may not always apply when it comes to the considerable powers of Big Tech companies to control access to speech. Instead, he suggested that the Court and lawmakers might have to consider other legal limitations on the powers of Big Tech. “If part of the problem is private, concentrated control over online content and platforms available to the public,” he suggested, “then part of the solution may be found in doctrines that limit the right of a private company to exclude.” Those limits are found in the law. In many respects, Big Technology companies are like common carriers, such as telegraph and telephone companies, a legal status that entails a duty to serve everyone.

As this analogy shows, Justice Thomas correctly interprets positive law in light of the more fundamental, common law that we inherited from England at the time of the Founding. Our written constitutions and statutes often presuppose and declare preexisting rights and duties that the common law has long drawn from natural law, such as the duty not to steal, and from immemorial customs, such as the liberty to wander into a bookstore.

Indeed, many our most cherished legal rights were settled in our law centuries before the Civil Rights Acts of 1875 and 1964 and the Communications Decency Act of 1996. They predate even the earliest American constitutions, such as the Massachusetts constitution and the Constitution of the United States. These include rights to use, possess, and (sometimes) sell private property.

The rights established in our fundamental law, including property rights, have boundaries built into them. As one of us recently observed, American law has never allowed private businesses to do whatever they want, and some regulation of Big Tech companies can be justified consistent with natural law and natural rights. And as the other of us has elsewhere explained, some regulations that might appear to be new limits on property rights in actuality are better understood as articulating existing limitations on property rights, which are part of our fundamental common law. All of our liberties have limits — entailed in the very philosophical justifications for the liberties, expressed in the maxims and doctrines of the common law, and available for judges and legislators to give more precise articulation as cases demand.

So, the boundaries around legal rights, and between private and public rights, are not modern inventions of Congress. Nor are they products of philosophical abstraction (though thinking clearly about them does require careful, philosophical analysis). They are built into the very structure of our legal rights. And they help secure the legal rights of others. The simplest example is the natural right to enter another’s land without permission when it is strictly necessary to save a human life (subject to a duty to provide restitution later for any damage caused by the entry). In our fundamental, common law, this right has been variously specified as a legal right of the poor to glean after harvest, a liberty to pursue dangerous animals or to retrieve one’s own livestock, and a right to tie up a vessel to someone’s dock during a violent storm.

Thomas’s concurrence illustrates that, to find principled sources and boundaries of property rights, it is often sufficient to look to established legal concepts and doctrines. To understand his opinion, it is necessary to see those concepts and doctrines clearly. There are (at least) two ways to misunderstand. One is common amongst right-leaning thinkers, and the other amongst left-leaning ones.

The right-leaning mistake is to reify “property” as an abstract and unlimited liberty. If this is your understanding of property rights, it’ll lead you to miss the inherent boundaries around property rights. This mistake might lead you to worry that any regulation of private property is a potential threat to property rights. A more careful lawyer would instead distinguish new laws that take away property rights from new laws that in essence declare and articulate long-standing boundaries around property rights according to what the U.S. Supreme Court has called the “background principles” of natural and common law.

The other way to go wrong in interpreting Justice Thomas’s opinion is to adhere to the mistaken view, now ascendant among many left-leaning jurists and law professors, that private property may be stripped of certain rights if one uses it for commercial activity or to express facts and opinions related to a matter of public interest. Justice Thomas expressed his dissatisfaction with that standard. It “is hardly helpful,” he noted, “for most things can be described as ‘of public interest.’” Indeed, property rights are particularly important to protect precisely when dealing with matters “of public interest.”

Consider an example. The Montgomery bus boycott in 1955 was a matter of immense public interest. But its success depended on the private-property rights of its leaders. It might not have happened had its organizers been stripped of their property rights to exclude white supremacists from their homes and businesses as they met privately to plan and coordinate their now-celebrated achievement of legal justice. Civil, private rights do not automatically become public rights just because they are exercised in matters of importance or public interest. To the contrary, public law and public officials must guard private rights ever more vigilantly when more people take an interest in how they are exercised.

We have constitutions and positive laws to secure both fundamental rights and the inherent boundaries around rights: all with an eye to promoting human dignity, human flourishing, the common good. To put this in language more hospitable to libertarians: The boundaries around rights just are the fundamental rights of others. American jurisprudence has long taken instruction from William Blackstone’s teaching that a legal wrong is a violation of one’s duty toward a person, an infringement of another person’s right. To secure the natural boundaries around rights, therefore, is to secure fundamental rights.

To secure those rights, governments are instituted among the American people. This does not mean that American constitutions (state and federal) supply a remedy for every infringement of a civil right. But it does mean that a more complete understanding of fundamental law can help us better understand the meaning and limits of American constitutions and federal and state statutes.

Justice Thomas shows the way forward. He observed that, when the First Amendment is not in play, “our law has typically addressed concerns about stifled speech through other legal doctrines, which may have a secondary effect on the application of the First Amendment.” In particular, he looked to two, long-standing legal “doctrines that limit the right of a private company to exclude.”

These doctrines rest on two distinct concepts, which some lawyers mistakenly confuse. The first is the legal concept of a common carrier. Generally a market actor and frequently possessing a dominant market position, a common carrier often is either franchised by a government or enjoys special privileges and immunities as a result of positive law. As a result of its privileged position, a common carrier has duties to provide service to all comers. In this quid pro quo, Justice Thomas explained, “Governments have tied restrictions on a carrier’s ability to reject clients to ‘im­munity from certain types of suits’ or to regulations that make it more difficult for other companies to compete with the carrier (such as franchise licenses).”

The second set of doctrines mentioned by Justice Thomas governs places of public accommodation. In such places, the owner’s duties do not descend from sovereign privileges and immunities but rather arise out of her own actions. The civil rights of her customers are shaped in the first instance according to a technical, legal artifact known by the common law as a license. A license is a privilege that the owner confers on others with certain limitations.

As common-law jurists have explained for centuries, when an owner invites the public to enter her premises for business purposes, the license that she confers upon the public is shaped according to the reasons for her business. The license may not be terminated for motivations contrary to natural law, such as racial animus. Positive enactments declare additional prohibited grounds, such as ethnicity and religious conviction. But within certain boundaries, owners of public accommodation are generally free to set the terms of the public’s license and to exclude or refuse service for what Blackstone called “good reason.”

This is not an historical anachronism. It remains the law. A business owner can alter the scope of the public’s license by offering different categories of goods or services, or abolish it by operating as a private club. But the common law applies.

When the owner’s motivations or the limitations of a public accommodation license are in doubt, the common law supplies an institution to settle the matter, namely a jury of her peers. The common law has long authorized proceedings for aggrieved customers to seek remedies for unlawful exclusion. In cases involving public accommodations, it was the writ of assumpsit, the predecessor of our modern action for breach of contract.

The success of this action depends on the terms of the license extended by the owner, which are limited according to what Blackstone called “natural reason, and the just construction of law.” As he explained, “if I employ a person to transact any [business] whose common profession and business it is not, the law implies no such general undertaking; but in order to charge him with damages, a special agreement is required.” To take an obvious example, no one has a right to walk into a barbershop and demand to be served a hamburger. But when it comes to large tech companies, one would reasonably expect to be able to post information about the topics of the day when everyone else is doing so. Or access the marketplace of goods or ideas when that market is available to others.

The common law also provides remedies against an unlawful common carrier or public franchise owner. These include not only assumpsit but also proceedings by which a complainant might enforce a forfeiture of special privileges or ask that the carrier’s franchise privileges be revoked. Unlike fundamental property rights, special privileges and immunities may be revoked as easily as they can be conferred.

Justice Thomas reasonably suggested that one solution for unlawful exclusion from digital platforms might be legislation that codifies those civil remedies. Here enters Section 230 of the Communications Decency Act, which immunizes website platforms from liability for certain third-party content. This and other laws that privilege Big Tech companies, combined with the near-monopolies that some of those companies enjoy, arguably moves such companies from the category of public accommodations into the category of common carriers.

To codify or enforce the common-carrier duties of Big Tech companies would therefore not be a legal innovation, nor a threat to property rights. To the contrary, in at least some cases it might be to protect and secure the civil rights of Americans. The Court is duty-bound to interpret positive laws affecting Big Tech companies as declaring, rather than abrogating, common-law rights and duties absent a contrary expression of legislative intent. Where Congress has expressly conferred special privileges or immunities on big business in derogation of common-law rights and duties, as in the Communications Decency Act, Justice Thomas’s opinion shows a way forward. Legislation that restores legal remedies for wrongs by digital-platform owners would express respect for civil rights, not threaten them.

Ryan T. Anderson is the president of the Ethics and Public Policy Center and the founding editor ofPublic Discourse.

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