After complaining for years about supposed political censorship on social media, conservatives have begun converging on a legal argument they say could remedy the problem: Treat tech platforms like railroads and telephone companies, and regulate them as common carriers.
Supreme Court Justice Clarence Thomas made the case in a recent concurrence. A former Trump administration staffer mounted the same argument in the op-ed pages of the Wall Street Journal. And Florida lawmakers used the theory to undergird a restrictive social media law that was recently struck down in court.
The logic goes like this: Tech platforms like Facebook are so dominant in their markets and so central to the transfer of information today that they serve the same function that telephone and telegraph companies used to. Therefore, the thinking goes, those platforms should also be forbidden from excluding speech they find objectionable. "Nineteenth-century telegraph companies were treated as common carriers, and then telephone companies, and then some forms of television. Communications technologies change, and each is different, but the legal analysis still fits," the recent Journal op-ed read.
But for all the ink that's been spilled to make this argument, a closer read suggests this approach would be unworkable, not just from a legal standpoint, but from a public interest standpoint as well. "I find it hard to believe that anyone making those proposals has actually thought about the consequences," said Daphne Keller, director of the Program on Platform Regulation at Stanford's Cyber Policy Center.
The social value
There are no hard and fast rules for what makes a common carrier, as John Bergmayer, legal director at the freedom of expression nonprofit Public Knowledge, explained in a blog post earlier this year. Historically, Bergmayer wrote, these restrictions applied to a much broader swath of private businesses, from shopkeepers to doctors. "Most of those requirements dropped away," Bergmayer wrote. "They remained for those areas where they were most socially valuable," like transportation and communications.
But the social value of forcing tech platforms to publish content that would otherwise violate their policies is questionable at best. If Facebook had to carry all the content it removes today, it would be practically unusable. After all, the biggest category of speech Facebook removes isn't political speech; it's spam. Where the company took action on 25 million pieces of hate speech last quarter, it took action against a whopping 905 million pieces of spam. And that's to say nothing of the tens of millions of pieces of nudity, graphic violence and terrorist propaganda it removed over the same time period.
A common carriage regime might prevent Facebook from banning certain political speech. But even if you're someone who wants that, you probably would not want to use Facebook anymore if every time you logged on, you were flooded with porn, beheading videos and ads for erectile dysfunction medication.
Forcing Facebook to carry all of those posts is a markedly different thing than forcing the telephone company to carry even offensive calls. "It doesn't ruin anyone else's experience of a telephone network that people might not like what other people are discussing on the phone," Bergmayer said. "[People are] mad at particular instances of content moderation where they think the platform got it wrong. You turn it into a common carrier and that problem goes away, but now you've got a thousand new problems that are all way worse."
One solution to that might be to create carve-outs for spam and other specific types of content, but constitutional experts say that would put any common carrier regulation on shaky legal ground. The whole point of imposing a common carrier regime on tech platforms would be to ensure no one's content is getting favored over anyone else's. "Common carrier laws typically don't have carve-outs. They apply to all content without regard for what it says," said Genevieve Lakier, a University of Chicago law professor, who specializes in speech and constitutional law.
Courts have repeatedly held that content-based regulations — that is, laws that favor or disfavor content based on its substance — are "presumptively unconstitutional" and subject to strict scrutiny, the highest level of judicial review. "It's a lawyer's way of saying it's really, really hard to justify," said Jeff Kosseff, assistant professor of cybersecurity law in the United States Naval Academy's Cyber Science Department. "You have to show there's a compelling government interest and that it's narrowly tailored."
The Florida law
The legal battles over Florida's recently passed social media law are particularly instructive in assessing how common carrier regulations on social media companies might struggle in court. That law prohibited social media platforms from banning or limiting the reach of politicians, and was almost immediately blocked.
Groups including the Electronic Frontier Foundation and TechFreedom filed amicus briefs supporting a preliminary injunction against the law and cited a slew of legal precedent to back up their argument. Both groups pointed to a 1974 case in which a Florida political candidate sued the Miami Herald for refusing to publish his response to a series of critical editorials. The candidate, Pat Tornillo, argued the Herald was violating a Florida law that gave political candidates the right to have their responses to criticism published in newspapers.
The Supreme Court ended up striking down Florida's so-called "right-to-reply" law, finding that the law was an "intrusion into the function of editors" and an attempt to impose "a penalty on the basis of the content." The Court even grappled with the fact that newspapers were, at the time, extremely powerful and had undergone substantial consolidation, but ruled in favor of the free press all the same.
The landmark case, EFF and TechFreedom argue, applies just as readily to social media platforms as it does to newspapers. "Every court that has considered the issue has applied Tornillo to social media platforms and search engines that primarily, if not exclusively, publish user-generated content," the EFF wrote in its brief.
Another case cited by both groups revolved around the 1993 St. Patrick's Day parade in Boston, in which the Irish-American Gay, Lesbian & Bisexual Group of Boston was denied a place in the parade. In a unanimous decision, the Supreme Court found that requiring the organizer — a military veteran named John "Wacko" Hurley — to include the group in the parade would be a violation of the First Amendment. "[W]hen dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's [First Amendment] right to autonomy over the message is compromised," the court wrote in its opinion.
Even the cases that Justice Thomas used to argue in favor of common carrier regulations are, as TechFreedom wrote, "positively brimming" with distinctions that make them "inapplicable to social media platforms."
In one such case, Turner Broadcasting System v. FCC, the Supreme Court found that cable companies could be required to carry public broadcast stations. In another, PruneYard Shopping Center v. Robins, the court found that a shopping mall couldn't prohibit high school students from protesting on its premises. Both cases, Thomas wrote, suggest that "there is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner."
But, as TechFreedom laid out in its amicus brief, both cases come with caveats. For one thing, in the Turner case, the Court found that the law requiring cable companies to carry broadcast channels was actually content neutral, because the requirement wasn't based on the substance of the programming on those channels, but on the manner in which they were broadcast, which made them free to the public. A law like the one in Florida, by contrast, that deals specifically with political speech, would almost certainly be content-based and, therefore, would be subject to strict scrutiny.
The Turner case also hinged in part on the idea that cable companies deploy actual physical infrastructure, giving "the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home." The same can't be said for social media companies, TechFreedom argued. Facebook might be gigantic, but even someone who's banned from Facebook has plenty of other social media platforms to pick from and very little barrier to entry to join them.
In the Turner case, the court also considered how closely associated a cable company is with the messages broadcast on the channels it carries. The court decided in that case that "there appears little risk" that cable viewers would think the cable operators were endorsing every message carried by every channel. As TechFreedom pointed out, the same cannot be said for tech companies, who are regularly asked to answer for the messages that do and don't appear on their platforms.
The PruneYard case raised a similar point, with the court finding that the student protesters' beliefs would not likely be associated with the mall itself. And while the court found that the mall couldn't kick the students off its property, it did emphasize that the mall could impose "time, place, and manner regulations" to "minimize any interference with its commercial functions."
This, TechFreedom wrote, is precisely what tech platforms are aiming to do by moderating content. "No common carrier has ever had to serve customers utterly blind to their behavior," TechFreedom wrote. "Such carriers have always been entitled to refuse service, or bar entry, to anyone who misbehaves, disrupts the service, harasses other patrons, and so on."
What's notable about how some on the right are now embracing common carrier regulations for social media companies is that, historically, conservatives have fought such restrictions in other fields of tech, most notably in broadband. When the FCC reclassified broadband providers as common carriers in its since-overturned Open Internet Rule in 2015, conservative commissioners and legal scholars alike accused the FCC of egregious government overreach.
In the court case that followed, upholding the FCC's decision, then-D.C. circuit court Judge Brett Kavanaugh himself wrote a dissent, arguing that the FCC's net neutrality protections were a violation of internet service providers' First Amendment rights. "He sounded an incredibly skeptical note about this kind of regulation in general," Lakier said.
Net neutrality proponents have almost universally slammed Kavanaugh's take in that case. Still, it's hard to see how Kavanaugh could argue that ISPs are entitled to exercise editorial discretion, but social networks are not, suggesting not even the conservative Supreme Court justices are united in Thomas' view.
Of course, just because this is the way courts have thought about common carriers in the past doesn't mean it's the way they'll continue to think about them in the future, particularly as pressure mounts in legal circles on the right. "There's a lot of energy among the conservative legal elite to push the doctrine in this area. But the doctrine is really not where they want it to be," said Lakier. "But how far movable is it, is the question."