One of the main arguments advanced to justify the challenged Florida and Texas social media laws NetChoice vs. Paxton AND Moody vs. NetChoice, (cases currently before the Supreme Court) is the claim that social media companies are “common carriers.” Therefore, it is argued, states can enact laws barring them from using most types of content moderation, even if such restrictions would otherwise violate the First Amendment.
University of Pennsylvania law professor Christopher Yoo recently published a paper that represents the most complete refutation of the common carrier theory yet. Here is the excerpt:
Courts and legislatures have suggested that classifying social media as common carriers would make restrictions on their right to exclude users more constitutionally permissible under the First Amendment. A review of the relevant statutory definitions reveals that the statutes provide no support for classifying social media as common carriers. Furthermore, whether a legislature can apply a label to a particular actor does not play a significant role in constitutional analysis. Further examination of the elements of the common law definition of common carrier demonstrates that four of the purported criteria (whether the industry is affected by a public interest, whether social media companies possess monopoly power, whether they are involved in transportation and communications) industries and whether social media companies have received compensatory benefits) do not apply to social media and do not affect the application of the First Amendment. The only legitimate common law basis (if an actor sets out to serve all members of the public without engaging in individualized bargaining) would once again seem inapplicable to social media and would have little bearing on the First Amendment. The weakness of these arguments suggests that advocates of limiting social media’s freedom to decide which voices to advance are attempting to gain some vague benefit from tying their efforts to the supposed historical pedigree of common transportation to avoid having to undertake the analysis case-specific requested by the First. Principles established by the amendment.
I agree with almost all of Yoo’s analysis. In particular, I think he is right that social media companies do not fit any of the traditional rationales for common carrier status, and that states cannot simply create such status by legislative fiat (or at least, if they do, they cannot ignore the constitutional constitution). constraints on their regulatory authority).
I’ve offered some related criticisms of the common vector logic for social media regulation here:
The standard rationale for regulating common carriers is that the companies in question have some sort of monopoly power. A classic example is a situation where only one railway is available to move goods from point A to point B, in an era when the only alternative modes of transport (e.g. horse-drawn carts) were much slower and less efficient. It is often argued that “Big Tech” social media has a sort of monopoly on the distribution of political information, especially online.
The reality is very different. Data from a recent survey compiled by the Pew Research Foundation shows that many more Americans get their news through means other than social media than social media. For example, 68% of Americans said they regularly get their news from websites and media apps, 68% from television, and only 53% from social media sites. Among the vast majority (about 96% of the total sample) who use more than one type of media to get news, 35% prefer TV, 26% prefer news websites and apps, and only 11% say they prefer social media. The same study also found that, on average, Americans trust news from social media less than news from television and news websites.
What is true for news is also true for opinions and commentary on political and social issues in the news. Most TV news channels, media websites and other similar information sources carry extensive commentary and opinion pieces. And, of course, they regularly print and broadcast statements from politicians, activists and other public figures.
To the extent that we are specifically concerned with the access of conservative viewpoints, there are large centre-right exponents both in broadcast media and in online news and opinion. These include major outlets such as Fox News, the Wall Street Journal editorial page, the Washington TimesTHE New York Postand other….
Other rationales for imposing common carrier rules on social media companies are even weaker than monopoly theory. For example, Eugene Volokh and others cite analogies with telephone lines or postal couriers. Most people would not want phone companies to block calls from those whose ideologies they disapprove of.
But such analogies are misplaced. With rare exceptions, phone calls and letters reach only a small, specifically intended audience… In contrast, the whole point of most political speech on social media is the ability to reach a large audience all at once. But an information product that simultaneously reaches a large audience usually works best if it has at least some moderation rules and other constraints that allow consumers to find the material they want, while avoiding harassment, name-calling, and other things that make the experience annoying. unpleasant or simply a waste of time.
For this reason, moderation rules and content restrictions are crucial for social media, in a way that is rarely, if ever, true for phone lines or mail delivery services….
[E]While social media platforms sometimes employ imperfect rules, the fact remains that those rules are often a valuable part of the product they provide. And it is far better for the quality… of such rules to be determined by competition in the marketplace rather than by one-size-fits-all government mandates – or by a common carrier mandate that imposes a near-total ban on such rules….
Perhaps the problem is not that social media giants monopolize audiences in some economic sense, but that they have too much influence on political discourse compared to some egalitarian baseline. Why should Mark Zuckerberg’s opinions carry more weight than those of the average American? But we can make exactly the same argument for the owners and editors of Fox News, the New York Timesand any other outlet with a large audience. They too have a much greater influence on public discourse than the average American….
Giving the government a free hand to impose common carrier restrictions on any website or news outlet that “monopolizes” a particular audience or otherwise has “too much” influence is a power that can and will be abused. Call it the “common bearer crawl!”