On Monday,
the Supreme Court will hear oral arguments in NetChoice v. Paxton and its companion case, Moody v. NetChoice. NetChoice is a trade association
that represents internet platforms such as Facebook, Google, and Twitter—some
of the biggest names in Silicon Valley. With a party like this, the case is
bound to be pivotal for the many millions of users of digital services. Sure
enough, while the debate at the center of the suit may seem abstruse at first, it
could determine whether Big Tech platforms operate fairly for all who use them.
NetChoice
sued Texas and Florida to block state laws that were enacted to restrict social
media networks’ ability to suspend or otherwise marginalize users. According to
NetChoice, the laws violate these companies’ First Amendment rights and, therefore, should be struck down as unconstitutional.
The Open
Markets Institute, where we work, filed an amicus brief in support of the states. Those
who are familiar with the organization may be surprised by our siding with two
conservative state governments. We, however, believe that the underlying
question of whether states and the federal government have the authority to
regulate social media and other internet platforms as common carriers is
critical. If the Supreme Court decides in favor of Big Tech platforms by ruling
that they cannot be designated and managed as common carriers, it will take
essential regulatory tools away from the government.
Why is
this such an important issue? At heart, common carriage requires certain
entities to generally serve all paying customers on the same terms. While most
people—well, at least those of us who are lawyers—probably think of railroads
and telecommunications companies when they hear “common carrier,” the principle
stretches back several hundred years to a time long before these industries
even existed. Its origins, in fact, were comparatively humbler than its modern
application: Courts in England and the United States historically placed
special duties on certain businesses such as inns and ferries, hence a distinct
body of law called “the common law of innkeepers and common carriers.”
Notably, in
many states, this meant that a hotel in the
early nineteenth century could not deny service to customers based on race
or ethnicity. And so the common carrier norm played a vital role in the modern
world, informing multiple civil rights laws.
The courts
did not indiscriminately designate businesses as common carriers. Rather,
common carriers had to possess one of two distinguishing features. First, some businesses, expressly or implicitly, held themselves out as open to everyone. That is why courts deemed inns,
ferries, wharves, delivery services, and farriers as common carriers. Second, certain
enterprises required special public permissions to operate. For instance, gas companies needed
municipal franchises to use the streets to lay pipes for distributing fuel. Businesses
that belonged to one of these two classes could be subject to common carrier
duties. By contrast, a manufacturing business or a private boarding house would
not be a common carrier.
The courts
applied the common carrier concept in a dynamic fashion. It was not fixed in
amber in the distant past. Over time, courts and subsequently legislatures expanded
common carriage obligations to cover new industries, such as railroads and
electricity. Although the telegraph did not exist at the inception of common
carriage, the Supreme Court of Vermont in 1889 described the lines of the
Western Union Telegraph Company as “a common carrier of speech for hire.”
The common
carrier concept remains alive and well. The judicial reinterpretation of the
First Amendment to protect corporate prerogatives has not led to the death of
common carriage principles for communications networks. In upholding the
Federal Communications Commission’s 2015 net neutrality order, a court of appeals wrote, “Common carriers have long
been subject to nondiscrimination and equal access obligations akin to those
imposed by the [FCC] rules without raising any First Amendment question.” The
late Justice Sandra Day O’Connor, an appointee of President Ronald
Reagan, stated, “If Congress may demand that telephone companies operate as
common carriers, it can ask the same of cable companies.” Congress and the
courts treated these networks not as expressive outlets themselves but as
conduits to facilitate the speech of others.
Social
media platforms fit within notions of common carriage. They are open to all
comers—a person only needs to provide their name and email address to start
using their platforms and posting. The platforms do some curation; they promote
select content and users and suppress others. But they are distinguishable from
magazines and newspapers. The New Republic, for example, reserves
full authority to run the stories and commentaries it chooses and makes
clear its
editorial and news pages are not open to the public. Twitter and YouTube do not
do that.
How would
common carriage apply to social media and other tech platforms? A good system
would restrict the ability of Twitter, YouTube, and Facebook to suspend users without
cause. As a general matter, they couldn’t ban users for expressing views they
find distasteful—whether conservative, centrist, or progressive.
NetChoice
and the social media companies they represent want us to believe that common
carriage would lead to an explosion of racist, misogynistic, and other bigoted
content. But well-designed common carrier rules would merely establish a presumptive
right to post content. Such rules wouldn’t lead to a free-for-all in which
social media becomes—or persists as—a sewer of violent and libelous speech. Just
as common carrier doctrine permitted railroads to deny service to belligerent passengers,
a good system of federal or state regulation should allow social media
platforms to suspend users for threatening or defaming others, using racial and
other slurs, posting pornography, or employing the networks to conduct illegal
activity. Under this system, the elite and powerful few who answer to no one (cough,
Elon Musk) would no longer solely decide what constitutes reasonable speech and
what runs afoul of social norms.
Moreover,
the common carriage approach isn’t a recipe for more hate speech: This problem
is a function of these platforms’ basic business model—surveillance
advertising. In the 1990s, people could express white supremacist views on
bulletin boards, but their posts wouldn’t be amplified and disseminated widely
the way they often are today.
But
today’s social media companies profit from keeping people online as much
as possible, both to sell more ads and to track users—the better to develop
more fine-grain profiles of our wants, needs, and fears. That means
incendiary content, whether conspiracy theories about the Rohingya in Myanmar, the 2020 presidential election in
the United States, or undocumented immigrants, sells. It keeps people highly engaged
and very online. Indeed, a casual examination of recent history indicates that
social media companies, at present, are not responsible stewards, but are
instead leading purveyors of hate speech.
In
addition to social media, common carriage principles could be applied to other tech
companies that hold themselves out as open to the public. For example, lawmakers
could designate cloud computing companies, such as Amazon Web Services, as common
carriers. These businesses provide an important service that is purportedly available
to all paying customers and should be operated on a nondiscriminatory basis.
Likewise, Google
Search could also be regulated as a common carrier: at present, Ohio is seeking
to do just that. In Ohio v. Google, the state attorney general is asking
a court to declare Google a common carrier under state law. Other states could
adopt its model and seek to have Google declared as a common carrier as well.
What does
common carriage look like if applied to Google Search? At the outset, we
acknowledge some discrimination is unavoidable in online search because results
that coughed up disorganized information would be useless. To be helpful, Google
must determine which 10 links show up on the first page of search results and
which links will be pushed to lower pages.
But a
system of common carriage would limit the grounds for discrimination, much like
a hotel cannot deny service to a paying guest based on their race or ethnicity
but can do so if they arrive late after all rooms are occupied or threaten
staff. Google would be prevented from elevating its own affiliates or
contractually favored partners in organic search results. In 2017, the European
Commission ruled that Google abused its dominant position and fined the company 2.42 billion
euros for elevating its own comparison shopping service over those offered by
independent rivals. Common carriage would prevent Google from engaging in
similar conduct in the future.
Preserving
the authority of the states and federal government to enact common carrier
rules on social media and other tech platforms is vital. The two of us have no affinity
for the current governments of Texas and Florida and are skeptical of the laws
being challenged in the NetChoice cases. But that does not blind us to
the stakes. The ordinary fix for bad laws is legislative amendment or repeal,
not asking the Supreme Court to play super-legislature. Stripping government of
the authority to enact common carrier rules for digital platforms would further
aggrandize judicial and oligarchic power in our country.
