Companies that use Social Media and have Common Carrier Status
The single most crucial question about government’s participation in social media is this: Can the major social media businesses be regulated as common carriers? This topic is especially important in light of two recent federal appeals court judgments.
If the answer is no, as the Eleventh Circuit determined in a May opinion, the top social media firms are generally free to pick which information and users to accept and exclude from their platforms. If the answer is yes, as the Fifth Circuit decided in September, the government has extensive jurisdiction at both the federal and state levels to compel the largest social media firms to host information and users that they would otherwise like to prohibit. To put it another way, if social media businesses are regulated as common carriers, they will have far less freedom and autonomy in undertaking content moderation than they have now.
In this piece, I’ll try to summarize some of the most compelling arguments on each side of this debate. Before I begin, I’ll explain my position: I believe that the First Amendment prohibits the government from regulating social media firms as common carriers. This is a viewpoint shared by many people, including some federal appeals court justices. However, there are many others who disagree, including certain federal appeals court judges and at least one Supreme Court Justice, and their points of view should be considered as well.
WHAT IS A COMMON CARRIER AND WHAT IS NOT?
To begin, consider some of the corporate firms that everyone believes are common carriers: those that operate railways, ferries, and telephone (including cellular) lines. These businesses present themselves to the public as suppliers of transportation or communication services. They must offer these services without discriminating against or in favor of certain people, organizations, or (in the case of communications services) content since they are common carriers.
A train firm, for example, cannot refuse to sell a ticket to a potential passenger because it disagrees with the person’s political views. A cellular telephone network service provider cannot refuse service to a potential client because it disagrees with the substance of the phone calls the customer is expected to conduct.
Newspapers, on the other hand, are universally acknowledged not to be common carriers. Their editors have complete control over the themes and tone of their articles, as well as the acceptance or rejection of article and op-ed ideas depending on variables such as the perspectives stated. In reality, the confluence of these decisions is what gives the newspaper its personality.
Social media firms engage in a variety of activities, not all of which include discussions over common carrier status. Few would argue that social media corporations are common carriers when it comes to making recommendations. Rather, the subject of common carrier comes in the context of choices to restrict persons or information from social networking networks.
SOME OBJECTIONS TO SOCIAL MEDIA COMPANIES BEING COMMON CARRIERS
People who argue that social media businesses should not be deemed common carriers might make the following arguments: First, social media companies are private organizations with First Amendment rights to select what information and users to accept on their platforms. When a social media firm curates information on its site by boosting, suppressing, censoring, or eliminating posts or users, it is engaged in expressive behavior.
Second, when Congress passed Section 230 in 1996, it recognized that the internet ecosystem would be more likely to succeed if the firms hosting user-posted information moderated the content. To encourage such behavior, Congress provided in Section 230(c)(2)(A) that providers of “interactive computer services” (which today include social media companies) are not liable for “any voluntary action taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
In terms of the stated content categories, US law consequently encourages social media businesses to engage in the type of content-based discrimination that common carriers are prohibited from engaging in. This shows, at the very least, that Congress did not consider “interactive computer services” to be common carriers. Section 230 might even be argued to preclude state legislatures from regulating social media businesses as common carriers.
Third, if the largest social media companies are deemed common carriers and, as the Texas social media law addressed by the Fifth Circuit ruling would require, are barred from blocking content based on the “viewpoint” of the user (subject to certain exceptions), this opens the door to all sorts of enormously problematic policy consequences. Some users may argue that racist content is just expressing a “point of view,” and that as a common carrier subject to Texas law, the social media business cannot delete it or take efforts to prevent its spread. Similar claims might be made about a large list of content that a social media firm has a strong interest in suppressing, such as posts touting fraudulent medical remedies, Holocaust denial, and so on.
SOME ARGUMENTS FOR SOCIAL MEDIA COMPANIES BEING COMMON CARRIER
Here are a few reasons in support of social media businesses being regulated as common carriers (disclaimer: I’m presenting these points, not agreeing with them): First, they advertise to the public that they provide a service that allows individuals to connect with one another. In that regard, they are just a more current technical manifestation of communications technologies such as the telegraph, landline telephone lines, and cellular networks, all of which are regulated as common carriers.
Second, while social media businesses have First Amendment rights to their own speech, they do not have an unrestricted authority to prohibit other people’s speech. In this regard, they are similar to a telephone company. A telephone company is permitted to voice its own opinions on subjects that are relevant to it. It can, for example, take public positions on proposed laws that would affect its operations. It is not free, however, to prohibit individuals from communicating on its networks in order to voice opinions it opposes.
Third, rather than undermining, Section 230 supports a common carrier classification by providing a liability shield by assuring that the speech of a social media site’s users is not the speech of the firm that owns the social media site. As a result, if the government forces a social media site to host disfavored information, it is not requiring the corporation to speak, but rather compelling the company to refrain from preventing a third party from speaking using its infrastructure.