David French Remarks about a Clarence Thomas Opinion

David French is a senior editor at The Dispatch and a columnist for Time. His new book is Divided We Fall: America's Secession Threat and How to Restore Our Nation. He is a former major in the United States Army Reserve. 

This is from Time, April 9, 2021

A Surprising Opinion From Justice Thomas May Signal an Ominous Shift on Free Speech

A curious thing happened at the Supreme Court a few days ago. One of the justices, Clarence Thomas, broke from his traditional judicial role and weighed in on a matter of public policy. He tried to put his thumb on the scales of a political dispute and floated legislative ideas that would profoundly and negatively impact First Amendment rights.

The issue is so-called Big Tech censorship. Thomas wrote a concurrence to a Supreme Court decision vacating a court of appeals opinion that had held that Donald Trump violated the First Amendment when he blocked Twitter users from following his account. But since Trump was no longer president (and indeed had been kicked off Twitter entirely), the case was moot.

Thomas, however, wrote separately to opine not just about the merits of the case itself, but about Big Tech censorship more broadly. He wrote to suggest ways in which legislatures could limit the freedom of tech companies to block or ban people from their sites. In other words, he wrote to suggest ways in which the government can override the liberty of private citizens to manage and moderate speech on their own private platforms.

The context here is important. Millions of Americans are deeply concerned about the power and reach of America’s largest tech companies (Facebook, Google, Twitter, Amazon, etc.), but their concerns often diverge sharply depending on their partisan affiliation. As a general matter, progressive Americans are concerned that Big Tech censors too little speech while conservative Americans are concerned that Big Tech censors too much.

Many progressives look at Facebook, Twitter, YouTube, and other tech companies and demand that they do more to combat disinformation, conspiracies, and so-called “hate speech”—words or images that are deemed to demean others on the basis of characteristics such as race, ethnicity, sex, gender identity, or sexual orientation.

Conservatives, by contrast, are deeply suspicious of Democrat-dominated Silicon Valley and demand that companies leave their speech alone. They argue that hate speech policies are vague and biased and that tech companies put their ideological thumb on the scales to favor progressive speech and suppress conservative ideas.

The two sides are increasingly united in wanting more government regulation. They’re deeply divided as to what those regulations should say.

But there’s another factor in play—the First Amendment. A long line of precedent, featuring rulings by justices on both sides of the ideological aisle, holds that private corporations possess their own free speech rights. They can speak, advance corporate values in the public square, and give donations to politicians they favor. In the famous words of Mitt Romney, “Corporations are people, my friend.”

When Major League Baseball pulls its all-star game from Georgia to protest Georgia’s voting law, that’s corporate free speech. When Hobby Lobby resists the Obamacare contraceptive mandate, that’s corporate religious freedom. Newspaper editorials are corporate free speech. So are union endorsements. So are church statements of faith. So are party platforms. In many ways, the American marketplace of ideas can’t properly function without corporate free speech. It represents a key way in which Americans organize and express ideas.

Make no mistake, social media moderation decisions are free speech. Even the way in which social media companies design algorithms to feature certain kinds of content at the expense of others is a form of free speech. They have created communities that reflect their own private visions of what a marketplace of ideas should look like and how it should function, and the result is a series of apps and websites that have different cultures, different customer bases, and different moderation rules.

And that’s what makes Thomas’s opinion so constitutionally unsettling. It is not the job of a Supreme Court justice to opine on matters of public policy, but that’s exactly what he did. He described what he called the “problem” of “private, concentrated control over online content and platforms available to the public” then went on to raise “two legal doctrines” that might “limit the right of a private company to exclude.”

Not only is it improper for a justice to make such a suggestion, the suggestions themselves are deeply problematic. First, he argued that perhaps “common carrier” legal doctrines could be deployed to regulate Big Tech. While there are different definitions of common carrier, they are typically companies that hold themselves out to the public as a means of transporting goods and some forms of information. FedEx and AT&T are modern examples of common carriers.

But to compare phone service and package delivery to social media is to try to jam a square peg into a round hole. Facebook is a moderated, curated platform that both hosts speech and speaks directly to its users and the public. It’s designed to create communities, not just transmit information. The same goes for every other social media corporation. The communities they create reflect not just the company’s economic interests, but its values as well (including the extent to which it values free expression.)

Social media posts, YouTube videos, and internet comments are more like letters to the editor or op-eds than phone calls or packages. They’re intended or at least available for broad public consumption. The regulatory arguments from right and left are thus often intended to commandeer the speech policies of private corporations to publicly spread (or suppress) ideas against their will.

Thomas also suggested that “legislatures might still be able to treat digital platforms like places of public accommodation.” Yet public accommodation law, which prohibits most businesses from discriminating against customers, typically protects access on the basis of identity, not expression. If Facebook or Twitter blocked users on the basis of race, sex, religion, sexual orientation, or gender identity (common protected categories under public accommodation law), then the comparison would work. Instead, tech companies tend to block users on the basis of viewpoint or content. Anti-vaxxers come from all races and religions. So too do pornographers or election conspiracy theorists. If the government aims to protect particular ideas, then it’s aiming directly at the expressive autonomy of American citizens—and companies.

Interestingly enough, in other circumstances, Thomas has repeatedly protected corporate free speech, including a right not to deliver another person’s message. Justice Thomas recently authored an opinion that explicitly rejected requiring corporations to deliver a message they despised. Thomas wrote for a five-justice majority that struck down California’s requirement that pro-life pregnancy centers provide notice that the state offered free or low-cost abortions. That same term, he also joined a seven-justice majority that protected the right of another corporation, Masterpiece Cakeshop, to refuse to design a custom cake for a same-sex wedding.

Thomas was also in the majority in one of the most consequential corporate speech cases in modern American jurisprudence, Citizens United v. FEC, which affirmed and protected a First Amendment right to corporate political speech.

To say that tech companies enjoy robust First Amendment freedoms is not to argue that they always exercise those freedoms responsibly. The public record is replete with examples of unfair or biased decision making, but, individually problematic decisions should not obscure a larger reality. We enjoy a greater ability to speak to the public on matters of public concern than we’ve ever enjoyed in the history of the nation. Even as conservatives often claim to live under a Big Tech “tyranny,” right-wing speech flourishes online.

Simply put, many Republicans are demanding government intervention—including intervention that could contradict decades of vital First Amendment precedent—to address a “crisis” that does not exist. It’s a shame that Justice Thomas fed unnecessary fuel to a fire that could consume key constitutional freedoms, the same freedoms that have helped provide Americans unprecedented access to the public square.

Ezra Klein NY Times Op-ed about Joe Biden

Four Ways of Looking at the Radicalism of Joe Biden

NY Times Op-ed by Ezra Klein
April 8, 2021

Joe Biden didn’t wake up one day and realize he’d been wrong for 30 years.

I covered him in the Senate, in the Obama White House, in the Democratic Party’s post-Trump reckoning. Biden was rarely, if ever, the voice calling for transformational change or go-it-alone ambition.

But you’d never know it from his presidency. The standard explanation for all this is the advent of the coronavirus. The country is in crisis, and Biden is rising to meet the moment. But I don’t buy it. That may explain the American Rescue Plan. But the American Jobs Plan, and the forthcoming American Family Plan, go far beyond the virus. Put together, they are a sweeping indictment of the prepandemic status quo as a disaster for both people and the planet — a status quo that in many cases Biden helped build and certainly never seemed eager to upend.

Over the past few months, I’ve been talking to White House staff members, to congressional Democrats, to policy experts and to the Biden administration’s critics to better understand why President Biden is making such a sharp break with Joe Biden. Here are a few of them, though this is by no means a complete list.

The collapse of the Republican Party as a negotiating partner.
Most discussions of the renewed ambitions of the Democratic Party focus on ideological trends on the left. The real starting point, however, is the institutional collapse of the right. Before Biden, Democratic presidents designed policy with one eye on attracting Republican votes, or at least mollifying Republican critics. That’s why a third of the 2009 stimulus was made up of tax cuts, why the Affordable Care Act was built atop the Romneycare framework, why President Bill Clinton’s first budget included sharp spending cuts. Both as a senator and a vice president, Biden backed this approach. He always thought a bipartisan deal could be made and usually believed he was the guy who could make it.

But over the past decade, congressional Republicans slowly but completely disabused Democrats of these hopes. The long campaign against the ideological compromise that was the Affordable Care Act is central here, but so too was then-Speaker John Boehner’s inability to sell his members on the budget bargain he’d negotiated with President Barack Obama, followed by his refusal to allow so much as a vote in the House on the 2013 immigration bill. And it’s impossible to overstate the damage that Mitch McConnell’s stonewalling of Merrick Garland, followed by his swift action to replace Justice Ruth Bader Ginsburg, did to the belief among Senate Democrats that McConnell was in any way, in any context, a good-faith actor. They gave up on him completely.

The result is that Obama, Biden, the key political strategists who advise Biden and almost the entire Democratic congressional caucus simply stopped believing Republicans would ever vote for major Democratic bills. They listened to McConnell when he said that “the only way the American people would know that a great debate was going on was if the measures were not bipartisan.” And so Democrats stopped devising compromised bills in a bid to win Republican votes.

This has transformed policy design: These are now negotiations among Democrats, done with the intention of finding policies popular enough that Republican voters will back them, even if Republican politicians will not. Biden still talks like he believes bipartisanship is possible in Congress, but his administration has put the onus on Republicans to prove it, and to do so on the administration’s terms. That, more than any other single factor, has unleashed Democrats’ legislative ambitions.

A new generation of crises created a new generation of staffers.
I’ve been struck by the generational divide within the Democratic Party. Washington is run by 20- and 30-somethings who run the numbers, draft the bills, brief the principals. And there is a marked difference between the staffers and even the politicians whose formative years were defined by stagflation, the rise of Reaganism and the relief of the Clinton boom, and those who came of age during financial crises, skyrocketing personal debt, racial reckonings and the climate emergency. There are exceptions to every rule, of course — see Sanders, Bernie — but in general, the younger generation has sharply different views on the role of government, the worth of markets and the risks worth taking seriously.

I put this observation to Brian Deese, the 43-year-old head of the National Economic Council. Deese was a young economic policy prodigy in the Obama administration. Now he’s the guy running the N.E.C., and he agreed that the new generation of staff members see the world very differently. “There has been a lot more work done to try to understand what the roots of economic inequality are over the course of the last decade, and openness to thinking about power and power dynamics,” he told me.

Deese said that this has revived interest in ways to strengthen labor unions — the American Jobs Plan calls for the Protecting the Right to Organize Act to become law, which Richard Trumka, the head of the A.F.L.-C.I.O., calls “a game changer” — and in industrial policy, where the government directly subsidizes various industries to guide the path of economic growth. This is a break with the economic ideas that dominated from Jimmy Carter’s presidency through Obama’s.

“The next generation of the economics profession is rebelling against its predecessors by being all about inequality in the same way that my generation rebelled against its predecessors by being all about incentives, and this is a good thing,” said Larry Summers, who served as Treasury secretary under Bill Clinton and N.E.C. director under Barack Obama.

Biden has less trust in economists, and so does everyone else.
Obama’s constant frustration was that politicians didn’t understand economics. Biden’s constant frustration is that economists don’t understand politics.

Multiple economists, both inside and outside the Biden administration, told me that this is an administration in which economists and financiers are simply far less influential than they were in past administrations. Some were frustrated by the change, others thought it a proper rebalancing of roles. But there is nothing like the axis of influence held by Summers, Tim Geithner and Peter Orszag at the dawn of the Obama administration, or that Robert Rubin and Summers held in the Clinton administration. Janet Yellen, the Treasury secretary, holds real weight in internal discussions, and so do some others, but economists are one of many voices at the table, not the dominant voices. This partly reflects Biden himself: he’s less academically minded, and more naturally skeptical of the way economists view the world and human behavior, than either Obama or Clinton. But it goes deeper than that.
The backdrop for this administration is the failures of the past generation of economic advice. Fifteen years of financial crises, yawning inequality and repeated debt panics that never showed up in interest rates have taken the shine off economic expertise. But the core of this story is climate. “Many mainstream economists, even in the 1980s, recognized that the market wouldn’t cover everyone’s needs so you’d need some modest amount of public support to correct for that moderate market failure,” Felicia Wong, the president of the Roosevelt Institute, said. “But they never envisioned the climate crisis. This is not a failure of the market at the margins. This is the market incentivizing destruction.”

Deese, the N.E.C. head, is notable for being a climate wonk who’s now in charge of the nerve center of White House economic policymaking. And the scale of the climate disaster, and the speed at which it must be addressed, simply demands a different role for the government. “If you think across the big systems in our country — the transportation system being one, the power and energy system being another — in order to actually solve climate change, we’re going to have to transform those systems,” he told me.

Economists have their ideas for solving climate change — a hefty carbon tax chief among them — but Biden and his team see this as fundamentally a political problem. They view the idea that a carbon tax is the essential answer to the problem of climate change as being so divorced from political reality as to be actively dangerous. Deese gets animated on this point. “I want to double down on that and say, it’s not just a messaging and narrative imperative,” he told me. “It has to be that Americans see and experience that the investments in building out a more resilient power grid actually improve their lives and create job opportunities for them, or their neighbors.”

Even beyond climate, political risks weigh more heavily on the Biden administration than they did on past administrations. This is another lesson learned from the Obama years. The Obama team had real policy successes: They prevented another Great Depression, they re-regulated the financial sector, they expanded health insurance to more than 20 million people. But Democrats lost the House in 2010, effectively ending Obama’s legislative agenda, and then they lost the Senate in 2014, and then Donald Trump won the White House in 2016, and then Democrats lost the Supreme Court for a generation.

Many who served under Obama, and who now serve under Biden, believe that they were so focused on economic risks that they missed the political risks — and you can’t make good economic policy if you lose political power. The Biden team is haunted by the fear that if they fail, a Trump-like strongman could recapture power. This helps explain why, for instance, they’re unmoved by arguments that the $1,400 stimulus checks, though wildly popular, were poorly targeted. As one of Biden’s economic advisers put it to me, “if we don’t show people we’re helping the dickens out of them, this country could be back to Trump way too quickly,” only he used an earthier word than “dickens.”

Biden is a politician, in the truest sense of the word.
Biden sees his role, in part, as sensing what the country wants, intuiting what people will and won’t accept, and then working within those boundaries. In America, that’s often treated as a dirty business. We like the aesthetics of conviction, we believe leaders should follow their own counsel, we use “politician” as an epithet.

But Biden’s more traditional understanding of the politician’s job has given him the flexibility to change alongside the country. When the mood was more conservative, when the idea of big government frightened people and the virtues of private enterprise gleamed, Biden reflected those politics, calling for balanced budget amendments and warning of “welfare mothers driving luxury cars.” Then the country changed, and so did he.

A younger generation revived the American left, and Bernie Sanders’s two campaigns proved the potency of its politics. Republicans abandoned any pretense of fiscal conservatism, and Trump raised — but did not follow through on — the fearful possibility of a populist conservatism, one that would combine xenophobia and resentment with popular economic policies. Stagnating wages and a warming world and Hurricane Katrina and a pandemic virus proved that there were scarier words in the English language than “I’m from the government, and I’m here to help,” as Ronald Reagan famously put it.

Even when Biden was running as the moderate in the Democratic primary, his agenda had moved well to the left of anything he’d supported before. But then he did something unusual: Rather than swinging to the center in the general election, he went further left. And the same happened after winning the election. He’s moved away from work requirements and complex targeting in policy design. He’s emphasizing the irresponsibility of allowing social and economic problems to fester, as opposed to the irresponsibility of spending money on social and economic problems. His administration is defined by the fear that the government isn’t doing enough, not that it’s doing too much. As the pseudonymous commentator James Medlock wrote on Twitter, “The era of ‘the era of big government is over’ is over.’”