A Cautionary Note on Treating Social Media Platforms as Common Carriers
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I’ve tried, then, to lay out what I think is a plausible case for treating platforms as common carriers, at least as to their hosting function. [That’s as a policy matter; my First Amendment analysis on this is coming starting with the next post. -EV] But I should stress that this is just a tentative case.
[1.] I appreciate the value of private property rights. Though the government may sometimes requires property owners to serve people they’d prefer not to serve—indeed, as it does for common carriers—this should be the rare exception and not the general rule. The problems laid out above, for instance, may not be serious enough to justify such interference. Perhaps people are just so concerned by a few incidents over a few years that they lose a sense of perspective about what might ultimately be a minor problem.
[2.] One value of private property rights is that sometimes private property owners can enforce valuable norms that the government can’t; protect us from violence and other harms that stem from violation of those norms; or at least create diverse and competing norms, which might itself provide valuable choice to users. We probably profit greatly, for instance, from the fact that our friends can eject rude people from their parties, and that most businesses can eject rude speakers from their property. Such ejections might be rare, but perhaps their very availability makes them less necessary.
Likewise, perhaps the
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