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Take campaign finance. In McConnell v. Federal Election Commission (2003), Thomas wrote alone to fault his colleagues in the majority for largely approving the Bipartisan Campaign Reform Act of 2002, which, among other things, banned corporate- and union-funded “electioneering communications” that mentioned a candidate by the name in the run-up to an election. Seven years later, in Citizens United v. Federal Election Commission (2010), the Court cited Thomas’ McConnell opinion while striking down the same “electioneering communications” ban. He knows a thing or two about playing the legal long game.
Thomas also wields considerable influence in the broader conservative world, where interested parties are no doubt paying close attention to the present case. In other words, get ready for a host of new laws and lawsuits that cite Thomas’ words in support of greater regulatory crackdowns on tech companies.
And do not be surprised when federal judges start citing him too. As Jeff Kosseff, author of The Twenty-Six Words That Created the Internet (Cornell University Press), remarked on Twitter, “I do think that Thomas’s statement increases the chances that at least two judges on a randomly chosen circuit court panel will rule in favor of must-carry rules for social media platforms.” The legal conflict over government control of social media is just starting to heat up.
Thomas is surely correct about one thing. “We will soon have no choice,” he wrote, “but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” One way or another, Big Tech will eventually collide with government regulators at the Supreme Court.
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