A Cautionary Note on Treating Social Media Platforms as Common Carriers

Another excerpt from my Social Media as Common Carriers? article (see also this thread).

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I've tried, then, to lay out what I think is a plausible case for treating platforms as common carriers, at least as to their hosting function. [That's as a policy matter; my First Amendment analysis on this is coming starting with the next post. -EV] But I should stress that this is just a tentative case.

[1.] I appreciate the value of private property rights. Though the government may sometimes requires property owners to serve people they'd prefer not to serve—indeed, as it does for common carriers—this should be the rare exception and not the general rule. The problems laid out above, for instance, may not be serious enough to justify such interference. Perhaps people are just so concerned by a few incidents over a few years that they lose a sense of perspective about what might ultimately be a minor problem.

[2.] One value of private property rights is that sometimes private property owners can enforce valuable norms that the government can't; protect us from violence and other harms that stem from violation of those norms; or at least create diverse and competing norms, which might itself provide valuable choice to users. We probably profit greatly, for instance, from the fact that our friends can eject rude people from their parties, and that most businesses can eject rude speakers from their property. Such ejections might be rare, but perhaps their very availability makes them less necessary.

Likewise, perhaps there was value to an earlier, much more constrained media environment in which extremists (by the standards of the time) found it hard to reach a large audience. And perhaps it's better to trust Big Tech companies to regulate public debate—subject to what market pressure may be placed on them—than to trust an unregulated public debate.[108]

[3.] Government regulation can easily make problems worse.[109] Some regulations may actually help entrench incumbents (for instance, by imposing costs that are too expensive for upstarts), and diminish future competition.[110] Other regulations may create new governmental bureaucracies that could be indirectly used to suppress certain viewpoints, for instance if the common carrier rules are enforced by some Executive Branch agencies. Or if the rules are enforced in court, they may practically be too costly for most speakers to litigate (though the hope is that platforms might voluntarily comply, perhaps because they would rather not make content moderation decisions, so long as they can blame the unmoderated content on government mandate).

For all these reasons, the best solution might well be to stay the course, and to expect market competition to resolve what problems there might be. Or perhaps the law should operate on deeper levels of the communications infrastructure, for instance imposing common carrier obligations only on pure hosting companies, such as Amazon Web Services, or requiring platforms to make their services interoperable with rivals and thus diminishing monopoly-producing network effects.[111] Again, though, I want to suggest that the phone company analogy is something that we should seriously consider, even if we ultimately come to reject it.

[108] Cf. Cass Sunstein, Liars: Falsehoods and Free Speech in an Age of Deception 8–9 (2021) (urging social networks to "do more than they are now doing to control the spread of falsehoods"); Samples, supra note 38, text following n.131 ("Private content moderators permit false speech. However, they manage such speech much more efficiently than the government."); Jack M. Balkin, How to Regulate (and Not Regulate) Social Media (forthcoming 2021) ("Generally speaking, the free speech principle allows the state to impose only a very limited set of civility, safety, and behavioral norms on public discourse, leaving intermediate institutions free to impose stricter norms in accord with their values… . [But i]f private actors are going to impose norms that are stricter than what governments can impose, it is important that there be many different private actors imposing these norms, reflecting different cultures and subcultures, and not just two or three big companies.").

[109] See Samples, supra note 38, text accompanying nn.42–48.

[110] See, e.g., Huddleston, supra note 31.

[111] See, e.g., Przemysław Pałka, The World of Fifty (Interoperable) Facebooks, 51 Seton Hall L. Rev. 1193 (2021); Samuel Hammond, The Impoverished Debate Over Section 230, Commons (American Compass) (July 13, 2020), https://perma.cc/WYW2-R4UH; Balkin, supra note 91, at __.