Profs. Adam Candeub & Philip Hamburger on “The Common Carrier Cure for First Amendment Uncertainty”
An interesting new twist on the argument, which particularly focuses on how social media quasi-common-carrier regulations can fight governmental pressure on platforms to censor certain material; it reminded me of Ian Samuel’s The New Writs of Assistance, which similarly argued that some Big Tech companies should be legally required to limit the data they maintain about users, in order to fight governmental pressure on them to disclose it.
I’m not sure whether on balance such social media quasi-common-carrier rules are a good idea, but I thought the essay was worth passing along. (I have argued that some kinds of such rules are constitutional, and laid out some other arguments in their favor, but I can certainly see lots of arguments against them as well, some of which have been well laid out in this symposium.) I’d of course be glad to post or link to responses to this as well.
Recently leaked documents, published by Senators Grassley and Hawley, show the crucial importance of anti-discrimination requirements for Big Tech. Notably, they reveal the value of the Texas free speech statute currently under review in the U.S. Court of Appeals for the Fifth Circuit. The documents disclose planning by the Department of Homeland Security to work with its “partners” such as Twitter (and presumably the other dominant internet platforms) to monitor so-called “disinformation”—including through the infamous “Disinformation Board.” This leads to the pressing constitutional question: Can the government sidestep the First Amendment by coordinating with private companies to shut down “misinformation” and “disinformation”?
The constitutional problem, interestingly, has a statutory solution. The First Amendment bars Congress from making any law abridging the freedom of speech, or of the press. But the courts have left unclear whether the Administration’s coordination with the social media companies is unconstitutional. And that is why the Texas statute is so important.
The Texas statute, HB 20, finds the largest social media platforms to be common carriers—which is well justified by both their function and their size—and bars them from discriminating on the basis of viewpoint. It thus prohibits them from coordinating with the Biden administration to censor Americans in the ways described by the leaked documents. Just as AT&T cannot lawfully acquiesce to government-pressure to deny you a telephone, HB 20 makes it unlawful for the major internet platforms to go along with the Biden administration’s pressure.
Government coordination with private organizations to censor individuals is not a new problem. The English government in the seventeenth century worked through the Universities and the Stationers Company (a trade guild) to censor printing. Although the government sometimes required them to do the censorship, it at times just coordinated with them.
This history reveals much about the reach of the First Amendment, because the seventeenth-century censorship was the primary example of what the amendment forbade. So there is no doubt that the First Amendment bars the government from privatizing its censorship—from using private companies to stifle dissent.
But can the Department of Homeland Security evade the First Amendment by simply avoiding force—by merely asking private companies to “cooperate.” This is utterly creepy. But is it unconstitutional?
Suppose the Secretary of the Interior asked the Acme Construction Company (just as a favor to the government) to bulldoze your house. T
Article from Reason.com
