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When SCOTUS Sided with Big Tech

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June 10, 2022


On May 31, the Supreme Court made probably the most consequential decision since 2021.  By a slim majority, 5-4, SCOTUS vacated an appeals court ruling to stay a district court’s preliminary injunction against Texas bill H.B. 20, in NetChoice v. Paxton.  That is, it reinstated the preliminary injunction against the Texas law, made by an Obama-appointed district judge in Austin.

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NetChoice, LLC and a lobbying group, CCIA, launched the original lawsuit on behalf of Big Tech platforms.  I filed an amicus brief in support of Texas in NetChoice v. Paxton, 21-51178, before the 5th Circuit Court of Appeals.  The appeals court correctly stayed the preliminary injunction.  This stay has now been vacated by the Supreme Court, rendering H.B. 20 unenforceable once again.  Justices Alito, Thomas, Gorsuch, and Kagan dissented.  Justice Alito wrote the dissenting opinion, on behalf of himself and Justices Thomas and Gorsuch.

Texas law H.B. 20 restricted viewpoint censorship by big platforms and imposed nominal reporting requirements on them.  Big Tech platforms claim that their First Amendment rights apply not only to their own speech (which is not questioned), but also to their consumers’ speech  on their consumers’ property.  We, Big Tech consumers, speak (or post) in our homes, on our smartphones, and we pay for the internet traffic to and from those platforms, all while letting the platforms harvest mountains of private data from us.  Yet, somehow, Big Tech convinced SCOTUS to use the First Amendment not to protect freedom of speech, but to suppress it.

The initial preliminary injunction against the Texas law was based on very little evidence, mainly testimonies of some platforms’ officers and only one rushed expert opinion on behalf of Texas.  No new evidence is added in appeals.  Apparently, the original decision was made based on the Big Tech misinformation (sorry for using this word), repeated by the mainstream media funded by Big Tech, and without awareness that persons with opposite views have been deplatformed or are in fear of deplatforming.  Thus, it is accepted as common knowledge.

Giving Big Tech even more power

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Granting Big Tech First Amendment rights over consumers’ speech and content officially elevates Big Tech to the rank of “Masters of the Universe.”  These massive platforms are used not only for expressive speech, but also for daily interpersonal communication, emergencies, government communications, business presence, and criticism of the platforms themselves.  If these platforms now have editorial discretion rights over all their user’s communications, the platforms can legally eliminate competition to all their businesses.

The office of Texas attorney general Ken Paxton, defending H.B. 20, is no match for Big Tech’s onslaught.  Big Tech obviously wields much more influence, having almost inexhaustible funding and a near monopoly on the experts.  Additionally, defending Texas laws is not a normal responsibility of the Texas attorney general.  “Texas should not be required to seek preclearance from the federal courts before its laws go into effect,” wrote Justice Alito in the dissent.

Obtaining the necessary details and evidence to successfully hold Big Tech platforms accountable requires the ability to investigate and the authority to do so.  When the courts side with Big Tech against states that attempt to protect their citizens, this becomes a vicious spiral.

The missing evidence

The platforms’ Terms of Service do not create a valid contract, so courts will have to construct actual contracts between big platforms and their users, on a case-by-case basis.  The First Amendment is not a get out of contract free card.

Here are other relevant issues, which were not examined:

  • The case does not include evidence and argument that Big Tech platforms have become state actors and are therefore bound by the same constitutional restrictions as the government.
  • The case does not include evidence and argument addressing the platforms’ promises to their consumers, which they must honor.  Their application to the Supreme Court stated that “from the moment users access a social media platform, everything they see is subject to editorial discretion by the platform in accordance with the platforms’ unique policies.”  This sounds like an insulting joke.
  • No evidence was shown that big platforms have the proper authorizations from their users to exploit their labor, creative content, and private data with “editorial discretion.”
  • On the face, platforms exceeded any authorized access to users’ computers and smartphones in violation of the Computer Fraud and Abuse Act, which prohibits “intentionally access[ing] a computer without authorization or exceed[ing] authorized access, thereby obtain[ing] information from any protected computer” (18 U.S. Code § 1030[a][2][C]).  No evidence of the opposite was shown.

The Supreme Court is under attack, and Big Tech aids the attackers

It is worth noting that the Supreme Court is under attack as six “conservative” justices are harassed and threatened at their homes.  Picketing and parading at judges’ homes is illegal (18 U.S. Code §1507) and punishable by up to a year in prison.  Even the WaPo agrees.  The language used by the instigators on their websites and Twitter accounts goes far beyond picketing.  Some of the accounts (e.g., @WallOfMoms ) belong to Antifa.  The slogans include “Shut Down SCOTUS,” “Abort Alito,” and “topple #scotus6.”  Neither the Biden regime nor D.C. authorities are bothering to investigate the instigators of the illegal threats and harassment of justices.  More extreme Democrat leaders cheer them on.

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Big Tech platforms are the key tool being used by these instigators to organize physical harassment and threats against the Justices.  The leaked draft decision for the abortion case Dobbs v. Jackson from February was published on May 2, but a Google map with the home addresses of six justices was created on April 25 and was active until May 6.  The instigators’ accounts on Twitter linked to this map.

Big Tech platforms provide anonymity for the organizers of threats and attacks against the justices.  In addition, some platforms normalize and legitimize these actions.

The platforms claim that they eliminate extremism.  That leads ordinary people to conclude that the activities the instigators promote are not extremism.  The platforms claim that they provide the modern equivalent of the public square.  They do not say they eliminate or restrict the reach of conservative accounts.  Twitter is also known for deplatforming people who have critically engaged with far-left accounts.  Ordinary people do not know that and conclude that the incitement against SCOTUS is not challenged because it reflects general views.

It is possible that SCOTUS made the ruling in NetChoice v. Paxton under duress caused by threats from the far left, aided by big platforms.

Image via Max Pixel.

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