Common Carrier Status as Quid Pro Quo for § 230(c)(1) Immunity
The final substantive excerpt from the First Amendment section of my Social Media as Common Carriers? article (see also this thread); recall that the key First Amendment arguments are in this post, which relies on the PruneYard, Turner, and Rumsfeld precedents, and in this one, which explains why Miami Herald, Hurley, and the various other “common theme” precedents don’t apply.
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For all these reasons, I think Congress could categorically treat platforms as common carriers, at least as to their hosting function. But Congress could also constitutionally give platforms two options: (1) Be common carriers like phone companies, immune from liability but also required to host all viewpoints, or (2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and-takedown basis).
Indeed, this would just return the law to something close to the pre-§ 230 common-law rules, as modified by the First Amendment protections that have developed starting with New York Times v. Sullivan. Historically, American law has divided operators of communications systems into three categories—publishers, distributors, and conduits—and has set up different standards of liability for each.
|Publishers||Newspapers, magazines, and broadcasters, which themselves print or broadcast material submitted by others (or by their own employees). ||Free to choose what to include.||Fully liable for material they include, as for their own speech.|
|Distributors||Bookstores, newsstands, and libraries, which distribute copies printed by others; likely also property owners on whose property people might post or write things.||Free to choose what to distribute.||Liable on what we might today call a notice-and-takedown basis.|
|Conduits||Telephone companies, cities on whose sidewalks people might demonstrate, or broadcasters running candidate ads that they are required to carry.||Generally legally forbidden from choosing what goes on their property.||Not liable at all.|
The two pre-§ 230 Internet libel decisions, Cubby v. Compuserve, Inc. and Stratton Oakmont, Inc. v. Prodigy Services Co., seemed to roughly distinguish services that edited, which were treated as publishers and were thus potentially legally liable for others’ material that they didn’t edit out, from services that didn’t edit, which were treated as distributors and were thus at least largely immune. The Cubby / Stratton Oakmont results encouraged providers not to restrict speech in their chat rooms and other public-facing portions of their service: If they were to try to block or remove vulgarity, pornography, or even material that they were persuaded was libelous or threatening, they would lose their protection as distributors, and would become potentially strictly liable for material their users posted. At the time, that looked like it would be ruinous for many service providers (perhaps for all but the unimaginably wealthy, will-surely-dominate-forever America Online).
Congress, then, chose to reject the Cubby / Stratton Oakmont approach, and instead to deliberately provided conduit immunity to all entities—including those that, unlike traditional conduits, could and did select what user content to keep up. It did so precisely to encourage (though without requiring) conduits to block or remove certain speech, by removing a disincentive (loss of immunity) that would have otherwise come with such selectivity. It gave them this flexibility regardless of how the entities exercised this function. And Congress chose conduit liability (categorical immunity) rather than distributor liability (notice-and-takedown immunity). Online sites thus had the best of both worlds: the selection power of distributors, but the liability of conduits.
But that was Congress’s decision in 1996. It’s not set in stone, and not constitutionally mandated. Publisher and distributor liability is consistent with the First Amendment, despite the chilling effect it might sometimes create, so long as it complies with the New York Times v. Sullivan / Gertz v. Robert Welch rules immunizing honest mistakes (or sometimes just reasonable mistakes).
If Congress wants to return to a world where social media immunity for libel (and other torts) turns on whether social media platforms act as common carriers, it can do so. I’m not at all sure that’s the right approach as a policy matter, especially since immunity from tort liability has helped many small and midsized online platforms thrive, and those platforms’ editorial power has often been valuable. But it does reflect an important practical reality: Immunity from tort liability is what also helped the major platforms become so big, powerful, and capable of influencing public debate—thus helping create the problems to which common carrier status might be a solution.
This sort of condit
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