(Rafael Henrique | Dreamstime.com)
One of the main arguments advanced to justify the Florida and Texas social media laws challenged in NetChoice v. Paxton and Moody v. NetChoice, (cases currently before the Supreme Court) is the claim that social media firms are “common carriers.” Therefore, it is argued, the 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 Prof. Christopher Yoo recently published an article that is the most thorough takedown of the common carrier theory so far. Here is the abstract:
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. Moreover, the fact that a legislature may apply a label to a particular actor plays no significant role in the constitutional analysis. A further review of the elements of the common law definition of common carrier demonstrates that four of the purported criteria (whether the industry is affected with a public interest, whether the social media companies possess monopoly power, whether they are involved in the transportation and communication industries, and whether social media companies received compensating benefits) do not apply to social media and do not affect the application of the First Amendment. The only legitimate common law basis (whether an actor holds itself out as serving all members of the public without engaging in individualized bargaining) would again seem inapplicable to social media and have little bearing on the First Amendment. The weakness of these arguments suggests that advocates for limiting social media’s freedom to decide which voices to carry are attempting to gain some vague benefit from associating their efforts with common carriage’s supposed historical pedigree to avoid having to undertake the case-specific analysis demanded by the First Amendment’s established principles.
I agree with almost all of Yoo’s analysis. In particular, I think he is right that social media firms don’t 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, it cannot override constitutional constraints on their regulatory authority).
I offered some related critiques of the common-carrier rationale for social media regulation here:
The standard rationale for common carrier regulation is that the the firms in question have some kind of monopoly power. A classic example is a situation where there is only one railroad available to move freight from Point A to Point B, in an era where the only alternative modes of transportation (e.g.—horse-drawn wagons) were vastly slower and less efficient. It is often argued that “Big Tech” social media have some sort of monopoly over the distribution of political information, especially online.
The reality is very much otherwise. Recent survey data compiled by the Pew Research Foundation finds that many more Americans get news by means other than social media than use the latter. For example, 68% of Americans indicated they regularly get news from media websites and apps, 68% from television, and only 53% from social media sites. Among the overwhelming majority (about 96% of the total sample) who use more than one type of media to get news, 35% preferred TV, 26% preferred news websites and apps, and only 11% said they preferred social media. The same study also found that, on average, Americans trust news from social media sources less than that from television and news websites.
What is true of news is also true of opinion and commentary about 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 routinely print and broadcast statements by politicians, activists, and other public figures.
To the extent we are specifically concerned with access for conservative viewpoints, there are large right of center players in both TV media and online news and opinion. These include such major outlets as Fox News, the Wall Street Journal editorial page, the Washington Times, the New York Post, and others….
Other rationales for imposing common carrier rules on social media firms are even weaker than the monopoly theory. For example, Eugene Volokh and others cite analogies to telephone lines or mail carriers. Most people wouldn’t want phone companies to bar calls by those whose ideologies they disapprove of.
But such analogies are misplaced. With rare exceptions, phone calls and letters only reach a small, specifically intended audience….. By contrast, the whole point of most political discourse on social media is the ability to reach a large audience all at once. But an information product that reaches a large audience simultaneously usually works better if it has at least some moderation rules, and other constraints that enable consumers to find the material they want, while avoiding harassment, offense, and other things that make the experience annoying, unpleasant, or simply a waste of time.
For that 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]ven if social media platforms sometimes adopt flawed rules, the fact remains that such 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 market than by one-size-fits-all government mandates—or by a common carrier mandate imposing a near-total ban on such rules….
Perhaps the problem is not that social media giants monopolize any audience in some economic sense, but that they have too much influence over political discourse relative to some egalitarian baseline. Why should Mark Zuckerberg’s views have any more clout 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 Times, and any other outlet with a large audience. They too have vastly more influence over public discourse than the average American does….
Giving government a free hand to impose common carrier restrictions on any website or media outlet that “monopolizes” a particular audience or otherwise has “too much” influence is a power that can and will be abused. Call it “common carrier creep!”
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