Social Media Platforms as Common Carriers?

I finally have a presentable draft of this article, forthcoming in the Journal of Free Speech Law; I'll be posting excerpts over the next couple of weeks.

You can also read the article in PDF, or read all the posts that have been posted so far on this thread. I still have time to make edits, and I'd love to hear what corrections or suggestions or counterarguments people have. Here, to start with, is the Introduction:

[* * *]

Say that the U.S. Postal Service refused to allow the mailing of KKK, Antifa, or anti-vax publications.[1] That would be unconstitutional,[2] however much we might appreciate the desire of USPS managers to refuse to participate in spreading evil and dangerous ideas. And though UPS and FedEx aren't bound by the First Amendment, they too are common carriers[3] and thus can't refuse to ship books sent by "extremist" publishers.[4]

Likewise for phone companies, whether land-line monopolies or competitive cell phone providers.[5] Verizon can't cancel the Klan's recruiting phone number, even if that number is publicly advertised so that Verizon can know how it's being used without relying on any private information.[6] To be precise, the companies need not be common carriers as to all aspects of their operation: They can, for instance, express their views to their customers in mailings accompanying their bills, without having to convey others' views.[7] But they are common carriers as to their function of providing customers with telephone communications services.

And this seems to me to be a valuable feature of our regulatory system, not just an odd side effect of common carrier law. Certain kinds of important infrastructure, under these rules, are available equally to all speakers, regardless of the speakers' ideologies. Government enterprises (such as the post office) shouldn't decide which organizations or ideas should be handicapped in public debates. And neither should large private businesses, such as phone companies or package delivery services.

That is important even as to groups and viewpoints that are seen as extreme. But it is especially important as to viable political candidates, ideas, or media outlets that are serious competitors in democratic life. When elections are closely divided, even small interference with various groups' ability to affect public opinion can make a big difference in outcomes.[8] FedEx and Verizon shouldn't have the power to thus affect elections by refusing to carry certain views.

On the other hand, say the Los Angeles Times refuses to run an ad promoting the KKK, or promoting Antifa, or opposing vaccination. There is good reason to support the Times' right to do this. People read the Times in part precisely because of its editorial judgment, its ability to winnow the good and sensible views out of the vast mass of nonsense and folly; treating the Times as a common carrier would make it useless. And indeed the Times would have a First Amendment right to refuse to publish whatever material it chooses.[9]

The same would likely happen if a bookstore refused to distribute books like that. Perhaps both the newspaper and the bookstore might be condemned as unduly narrow-minded, if they go too far in excluding such material, at least unless they promote themselves as being ideologically focused. But for material that is seen as sufficiently extreme, newspapers' and bookstores' rejecting such material is quite normal.

The question, of course, is where we might fit the various functions of social media platforms.[10] This Article will offer some (often tentative) thoughts on this questions. I'll begin by asking in Part I whether it's wise to ban viewpoint discrimination by certain kinds of social media platforms, at least as to what I call their "hosting function"—the distribution of an author's posts to users who affirmatively seek out those posts by visiting a page or subscribing to a feed.

I'll turn in Part II to whether such common-carrier-like laws would be consistent with the platforms' own First Amendment rights, discussing the leading Supreme Court compelled speech and expressive association precedents, including PruneYard Shopping Center v. Roberts; Turner Broadcasting System v. FCC; Rums­feld v. FAIR; Miami Herald Co. v. Tornillo; Wooley v. Maynard; Pacific Gas & Electric Co. v. Public Utilities Commission; Riley v. National Federation of the Blind; Hurley v. Irish-American Gay, Lesbian & Bisexual Group; NIFLA v. Becerra; Boy Scouts of America v. Dale; and Janus v. AFSCME. (I discuss elsewhere whether such laws, if enacted on the state level, would be barred by 47 U.S.C. § 230(c)(2)(A) and the Dormant Commerce Clause.[11]) And then I'll turn in Part III to discussing what Congress may do by offering 47 U.S.C. § 230(c)(1) immunity only for platform functions for which the platform accepts common carrier status, rather than offering it (as is done now) to all platform functions.

On balance, I'll argue, the common-carrier model might well be constitutional, at least as to the hosting function. But I want to be careful not to oversell common-carrier treatment: As to some of the platform features that are most valuable to content creators—such as platforms' recommending certain posts to users who aren't already subscribed to their authors' feeds—platforms retain the First Amendment right to choose what to include in those recommendations and what to exclude from them.

And I also don't want to oversell the label "common carrier." I think the analogy to certain familiar common carriers, such as phone companies and package delivery services, is helpful; but it's only an analogy. Even if it proves to be a helpful analogy, there's little reason to think that all the details of common carrier law ought to be fully adopted for social media platforms, or that the threshold for regulation should be defined by traditional common carrier rules.[12]

Other analogies can also be helpful: As Part II.A will argue, the clearest First Amendment analogs would be cable must-carry rules and rights of access to the real estate of shopping malls and universities.[13] Justice Thomas has recently suggested that public accommodation laws might be useful analogies as well;[14] indeed, some courts have recently treated media web sites as places of public accommodations for purposes of disability law,[15] and laws in some jurisdictions already ban discrimination based on political affiliation or ideology.[16] The point is simply that the insights behind how certain communication and distribution services—and certain forms of property more generally—may and may not be regulated could also be helpful for thinking about various functions of social media platforms.

[1] Assume that it wouldn't need to open sealed envelopes, because the nature of the material is clear from the identity of the mailer or from the cover of an unwrapped magazine.

[2] See Lamont v. Postmaster General, 381 U.S. 301, 307 (1965).

[3] See, e.g., FedEx Corp. v. United States, 121 F. App'x 125, 126 (6th Cir. 2005).

[4] See 49 U.S.C. § 13101(a)(1)(D) (setting forth general policy against "unreasonable discrimination"), § 14101(a) (requiring common carrier to provide "transportation or service on reasonable request"); Mitchell v. United States, 313 U.S. 80, 94–95 (1941) (interpreting predecessor to this statute as banning race discrimination by common carriers, because such discrimination "would be an invasion of a fundamental individual right" if done by the government). They may sometimes be expected to monitor shipments for illegal content, see, e.g., U.S. Dep't of Justice, UPS Agrees To Forfeit $40 Million In Payments From Illicit Online Pharmacies For Shipping Services, Mar. 29, 2013, https://perma.cc/DEX3-WNSU, but they can't block materials simply because they don't like the ideas expressed within them.

[5] 47 U.S.C. § 202(a); Genevieve Lakier, The Non-First Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2317 (2021); Michael Kent Curtis & Eugene D. Mazo, Campaign Finance and the Ecology of Democratic Speech, 103 Ky. L.J. 529, 557 (2015).

[6] Christopher Yoo, The First Amendment Rights of Common Carriers: Net Neutrality, Privacy, and Beyond (forthcoming 2021), notes cases holding that allowed phone companies some power to block certain uses of their services, chiefly for dial-a-porn. But those all involved statutes that the courts read as specially limiting the common carrier obligation. Carlin Commc'ns, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1293–95 (9th Cir. 1987) (state law "prohibiting the distribution of sexually explicit material to minors," which was seen as "embod[ying]" a "public policy" of "protecting minors from 'adult entertainment'"); Carlin Comnc'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1361 n.5 (11th Cir. 1986) (47 U.S.C. § 201 exclusion of the service from common carrier obligations); Network Commc'ns v. Mich. Bell Tel. Co., 703 F. Supp. 1267, 1275 (E.D. Mich. 1989) (same); Info. Providers' Coal. for Def. of First Amend. v. FCC, 928 F.2d 866, 877 (9th Cir. 1991) (47 U.S.C. §§ 233(b), (c)(1) exclusion of "indecent" communications).

[7] Pacific Gas & Elec. Co. v. Pub. Util. Comm'n, 475 U.S. 1 (1986), so held as to public utilities generally, and there is no reason why this analysis would be different for common carriers.

[8] Cf. Jonathan Zittrain, Engineering an Election, 127 Harv. L. Rev. F. 335 (2014).

[9] Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974).

[10] For earlier examples of calls to treat social media platforms as common carriers, see, e.g., K. Sabeel Rahman, Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities, 2 Geo. L. Tech. Rev. 234 (2018); Adam Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J. L. & Tech. 391, 433 (2020); Tunku Varadarajan (interviewing Richard Epstein), The 'Common Carrier' Solution to Social-Media Censorship, Wall St. J., Jan. 15, 2021; Richard Epstein, Should Platforms Be Treated as Common Carriers? It Depends–Perhaps (working paper). For a very early suggestion along those lines, though not aimed at modern social media platforms, see David J. Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public vs. Private in Cyberspace Speech, 69 U. Colo. L. Rev. 1, 40–47 (1998).

[11] See Adam Candeub & Eugene Volokh, Interpreting 47 U.S.C. § 230(c)(2), 1 J. Free Speech L. __ (2021); Eugene Volokh, Does 47 U.S.C. § 230(c)(2) Violate the First Amendment? (in draft); Eugene Volokh, State Social Media Mandates and the Dormant Commerce Clause (in draft).

[12] Social media platforms today aren't common carriers under some traditional definitions of the term, because they don't hold themselves out as "neutral conduits of information." Matthew Feeney, Are Social Media Companies Common Carriers?, Cato Inst. (May 24, 2021, 3:39 pm), https://perma.cc/V2C5-NH84; Berin Szóka & Corbin Barthold, Justice Thomas's Misguided Concurrence on Platform Regulation, Lawfare (Apr. 14, 2021, 10:30 am), https://perma.cc/97CY-P972. But cases such as Rumsfeld v. FAIR and Turner Broadcasting v. FCC show that access mandates may be imposed even on institutions—such as universities and cable operators—that are far from neutral conduits in many of their operations (e.g., defining their curriculum, hiring faculty, organizing conferences, or selecting what channels to include) and that may seek to be nonneutral in further ways (say, in selecting who may recruit on campus).

And even an entity that publicly announces that it wants to exclude some people may still be required to include them, whether this is because it's treated as a common carrier, a public utility, or as subject to a sui generis public access regime—after all, one facet of common carrier status is that the common carrier is barred from discriminating. See, e.g., 47 U.S.C. § 202(a). Common carrier status, for instance, barred railroads from discriminating among passengers based on race, even before such discrimination was expressly forbidden by public accommodations statutes. See, e.g., Mitchell v. United States, 313 U.S. 80, 97 (1941). Likewise, PruneYard was required to allow leafleters even though it had an express "policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes." PruneYard, 447 U.S. at 77. This was likewise true for the universities in Rumsfeld, and the cable systems in Turner.

Likewise, telephone companies were barred from excluding people based on mere suspicion that they were using the service for illegal purposes, such as gambling. Andrews v. Chesapeake & Potomac Tel. Co., 83 F. Supp. 966, 968–69 (D.D.C. 1949); Nadel v. N.Y. Tel. Co., 170 N.Y.S.2d 95, 98 (N.Y. Sup. Ct. 1957). One rationale for this bar was that, "Public utilities and common carriers are not the censors of public or private morals, nor are they authorized or required to investigate or regulate the public or private conduct of those who seek service at their hands." Pa. Publications v. Pa. Pub. Util. Comm'n, 36 A.2d 777, 781 (Pa. 1944) (cleaned up); People v. Brophy, 120 P.2d 946, 956 (Cal. App. 1942); Commonwealth v. Western Union Tel. Co., 67 S.W. 59, 60 (Ky. 1901).

[13] See infra Part II.A.1.

[14] Biden v. Knight First Am. Inst. at Columbia Univ., 141 S. Ct. 1220, 1224, 1227 (2021) (Thomas, J., concurring).

[15] See Winegard v. Crain Commc'ns, Inc., No. 20-CV-01509 (AJN), 2021 WL 1198960 (S.D.N.Y. Mar. 30, 2021); Sullivan v. BDG Media, Inc., 71 Misc. 3d 863 (N.Y. Sup. Ct. 2021); Nat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015); Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012); see also Sullivan v. Study.com LLC, No. 18-CV-1939 (JPO), 2019 WL 1299966 (S.D.N.Y. Mar. 21, 2019) (treating such a media site as a place of public accommodation, though in a case where defendant did not contest that proposition). For more on whether web sites that are ancillary to the sale of other goods and services are places of public accommodations for purposes of federal disability discrimination law, see Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1277 (11th Cir. 2021) (saying no); Robles v. Domino's Pizza, LLC, 913 F.3d 898, 905–06 (9th Cir. 2019) (saying yes); Blake E. Reid, Internet Architecture and Disability, 95 Ind. L.J. 591, 597–99 (2020) (summarizing the dispute).

[16] These jurisdictions include D.C., Seattle, Madison, Ann Arbor, Champaign-Urbana, the counties containing Detroit and Ft. Lauderdale, and several other cities, counties, and territories, and possibly also California. See Eugene Volokh, Can Places of Public Accommodation Exclude People Based on Their Politics?, Volokh Conspiracy, Apr. 8, 2021, at 5:46 pm, https://perma.cc/VY9Y-YW2G. Some of the laws ban only discrimination based on party affiliation, but others ban discrimination based on broader political beliefs as well. The main federal public accommodations law, Title II of the Civil Rights Act of 1964, doesn't currently treat social media platforms as places of public accommodation, Lewis v. Google LLC, No. 20-16073, 2021 WL 1423118, (9th Cir. Apr. 15, 2021), and in any event doesn't ban discrimination based on ideological belief; but the question would be whether it, and similar laws, should be extended.