Author: Jasmine McNealy (University of Florida)

Justice Thomas acknowledged the extreme concentrations of power in social media organizations in the recent US Supreme Court case Biden v. Knight First Amendment Institute in which the Court determined that a case — meant to decide whether the blocking of critics of the presidential administration from a Twitter account used by that administration for official business, was unconstitutional — was no longer worthy of discussion. Justice Thomas was especially concerned that there seemed to be no specific regulatory framework that could mitigate the enormous consequences of the concentration of power in tech organizations as it related to expression and governance. He noted that we could look to public accommodation and common carriage laws for routes toward regulation. But both areas of law fall short of being either applicable or resolving tech-specific issues. There must be a new route for more adequately regulating tech organizations. This essay recommends using a power analysis in creating policy for tech firms, and in brief, offers a way of examining platform power dynamics and how we should proceed in regulating interactions in order to mitigate the consequences of unchecked power on expression, governance, and participation.