Social Media Platforms as Common Carriers?
You can also read the article in PDF, or read all the posts that have been posted so far on this thread. I still have time to make edits, and I’d love to hear what corrections or suggestions or counterarguments people have. Here, to start with, is the Introduction:
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Say that the U.S. Postal Service refused to allow the mailing of KKK, Antifa, or anti-vax publications. That would be unconstitutional, however much we might appreciate the desire of USPS managers to refuse to participate in spreading evil and dangerous ideas. And though UPS and FedEx aren’t bound by the First Amendment, they too are common carriers and thus can’t refuse to ship books sent by “extremist” publishers.
Likewise for phone companies, whether land-line monopolies or competitive cell phone providers. Verizon can’t cancel the Klan’s recruiting phone number, even if that number is publicly advertised so that Verizon can know how it’s being used without relying on any private information. To be precise, the companies need not be common carriers as to all aspects of their operation: They can, for instance, express their views to their customers in mailings accompanying their bills, without having to convey others’ views. But they are common carriers as to their function of providing customers with telephone communications services.
And this seems to me to be a valuable feature of our regulatory system, not just an odd side effect of common carrier law. Certain kinds of important infrastructure, under these rules, are available equally to all speakers, regardless of the speakers’ ideologies. Government enterprises (such as the post office) shouldn’t decide which organizations or ideas should be handicapped in public debates. And neither should large private businesses, such as phone companies or package delivery services.
That is important even as to groups and viewpoints that are seen as extreme. But it is especially important as to viable political candidates, ideas, or media outlets that are serious competitors in democratic life. When elections are closely divided, even small interference with various groups’ ability to affect public opinion can make a big difference in outcomes. FedEx and Verizon shouldn’t have the power to thus affect elections by refusing to carry certain views.
On the other hand, say the Los Angeles Times refuses to run an ad promoting the KKK, or promoting Antifa, or opposing vaccination. There is good reason to support the Times’ right to do this. People read the Times in part precisely because of its editorial judgment, its ability to winnow the good and sensible views out of the vast mass of nonsense and folly; treating the Times as a common carrier would make it useless. And indeed the Times would have a First Amendment right to refuse to publish whatever material it chooses.
The same would likely happen if a bookstore refused to distribute books like that. Perhaps both the newspaper and the bookstore might be condemned as unduly narrow-minded, if they go too far in excluding such material, at least unless they promote themselves as being ideologically focused. But for material that is seen as sufficiently extreme, newspapers’ and bookstores’ rejecting such material is quite normal.
The question, of course, is where we might fit the various functions of social media platforms. This Article will offer some (often tentative) thoughts on this questions. I’ll begin by asking in Part I whether it’s wise to ban viewpoint discrimination by certain kinds of social media platforms, at least as to what I call their “hosting function”—the distribution of an author’s posts to users who affirmatively seek out those posts by visiting a page or subscribing to a feed.
I’ll turn in Part II to whether such common-carrier-like laws would be consistent with the platforms’ own First Amendment rights, discussing the leading Supreme Court compelled speech and expressive association precedents, including PruneYard Shopping Center v. Roberts; Turner Broadcasting System v. FCC; Rumsfeld v. FAIR; Miami Herald Co. v. Tornillo; Wooley v. Maynard; Pacific Gas & Electric Co. v. Public Utilities Commission; Riley v. National Federation of the Blind; Hurley v. Irish-American Gay, Lesbian & Bisexual Group; NIFLA v. Becerra; Boy Scouts of America v. Dale; and Janus v. AFSCME. (I discuss elsewhere whether such laws, if enacted on the state level, would be barred by 47 U.S.C. § 230(c)(2)(A) and the Dormant Commerce Clause.) And then I’ll turn in Part III to discussing what Congress may do by offering 47 U.S.C. § 230(c)(1) immunity only for platform functions for which the platform accepts common carrier status, rather than offering it (as is done now) to all platform functions.
On balance, I’ll argue, the common-carrier model might well be constitutional, at least as to the hosting function. But I want to be careful not to oversell common-carrier treatment: As to some of the platform features that are most valuable to content crea
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