The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In recent weeks, the case for imposing "common carrier" restrictions on major social media platforms such as Twitter and Facebook has gathered steam on the political right. Supreme Court Justice Clarence Thomas expressed sympathy for the idea in a recent concurring opinion. Co-blogger Eugene Volokh likewise gives it sympathetic treatment in an important new draft article on the subject (though he also expressed some reservations). A growing number of conservative politicians and activists had embraced the idea with a lot less nuance and reservation. If such proposals get enacted into law and survive First Amendment challenges (two big ifs!), they would set a very dangerous precedent.
Common carriers are businesses that have a legal obligation to serve all comers, so long as the latter pay for the service and obey some very minimal rules. Historically, most firms subject to common carrier regulation were involved in providing transportation or communications services. Standard examples include railroads and airlines. As applied to social media platforms, common carrier status would require them to serve all potential users, without discrimination as to the content the latter post, except perhaps in cases where that content is illegal (as in the case of disclosing classified information or organizing a criminal conspiracy, for example).
Let's start with first principles. Eugene Volokh asks "Whose rules should govern how Americans speak with other Americans?" He poses the question in a way intended to raise concerns about allowing social media firms to supposedly dictate those rules. But the right answer to this question actually cuts against his position.
That answer is that each American should be able to decide for himself, with extremely rare exceptions. But each person should also be able to decide what kinds of speech are permitted on their property. And that applies to media corporations no less than individuals. Thus, I should be able to advocate virtually any viewpoint I want. But Fox News and the New York Times should be equally free to refuse to broadcast or publish my views.
Both the right to free expression and the right to refuse a platform to speech you disapprove of are vital elements of freedom of speech. If Fox were forced to broadcast left-wing views they object to and the Times had to give space to right-wing ones its editors would prefer to avoid, it would be an obvious violation of their rights. Moreover, in the long run, such policies would actually reduce the quantity and quality of expression overall, as people would be less likely to establish TV stations and newspapers in the first place, if the cost of doing so was being forced to give a platform to your adversaries' views.
Thus, there should be a very strong presumption against forcing people to provide platforms for views they object to. Can proposals for common carrier regulation of social media overcome that objection? The answer should be a firm "no."
The standard rationale for common carrier regulation is that the the firms in question have some kind of monopoly power. A classic example is a situation where there is only one railroad available to move freight from Point A to Point B, in an era where the only alternative modes of transportation (e.g.—horse-drawn wagons) were vastly slower and less efficient. It is often argued that "Big Tech" social media have some sort of monopoly over the distribution of political information, especially online.
The reality is very much otherwise. Recent survey data compiled by the Pew Research Foundation finds that many more Americans get news by means other than social media than use the latter. For example, 68% of Americans indicated they regularly get news from media websites and apps, 68% from television, and only 53% from social media sites. Among the overwhelming majority (about 96% of the total sample) who use more than one type of media to get news, 35% preferred TV, 26% preferred news websites and apps, and only 11% said they preferred social media. The same study also found that, on average, Americans trust news from social media sources less than from television and news websites.
What is true of news is also true of opinion and commentary about political and social issues in the news. Most TV news channels, media websites, and other similar information sources carry extensive commentary and opinion pieces. And, of course, they routinely print and broadcast statements by politicians, activists, and other public figures.
To the extent we are specifically concerned with access for conservative viewpoints, there are large right of center players in both TV media and online news and opinion. These include such major players as Fox News, the Wall Street Journal editorial page, the Washington Times, the New York Post, and others.
In sum, social media sites have nothing approaching a monopoly over the market for political information generally, or even over its distribution online. To the contrary, they command a smaller audience than rivals such as TV stations and conventional media websites.
One measure of Big Tech social media's inability to control political discourse is their utter failure to prevent the rise of widespread attacks on Big Tech itself! Real monopolists worthy of the name should be able to at least suppress speech that directly threatens their own interests.
Moreover, as I explained in a January op ed in USA Today (itself one of the many alternatives to social media!), the big social media sites don't even command a true monopoly over social media, narrowly defined. Rival sites with different (and often much looser) moderation rules can and do compete with them. Parler is just one of a number of such initiatives. If they aren't as popular as Facebook and Twitter, it's not because of lack of competition, but because fewer consumers like them. Facebook and Twitter themselves challenged previous, supposedly dominant incumbents. If they annoy enough consumers, or if someone develops a more appealing competing platform, today's supposedly unassailable "giants" will suffer the same fate.
Other rationales for imposing common carrier rules on social media firms are even weaker than the monopoly theory. For example, Eugene Volokh and others cite analogies to telephone lines or mail carriers. Most people wouldn't want phone companies to bar calls by those whose ideologies they disapprove of.
But such analogies are misplaced. With rare exceptions, phone calls and letters only reach a small, specifically intended audience. Unless they are illegally tapping the line, the general public does not and should not have access to your phone conversations. Ditto for your mail. By contrast, the whole point of most political discourse on social media is the ability to reach a large audience all at once. But an information product that reaches a large audience simultaneously usually works better if it has at least some moderation rules, and other constraints constraints that enable consumers to find the material they want, while avoiding harassment, offense, and other things that make the experience annoying, unpleasant, or simply a waste of time.
For that reason, moderation rules and content restrictions are crucial for social media, in a way that is rarely, if ever, true for phone lines or mail delivery services. That is not to say that Facebook and Twitter's rules are always ideal. Far from it. I dislike many of them myself. In addition, enforcement of even the best social-media rules necessarily relies on algorithms and other crude mechanisms that often result in mistakes, including even ridiculous ones like confusing Holocaust education with Holocaust denial.
But even if social media platforms sometimes adopt flawed rules, the fact remains that such rules are often a valuable part of the product they provide. And it is far better for the quality (or lack thereof) of such rules to be determined by competition in the market than by one-size-fits-all government mandates—or by a common carrier mandate imposing a near-total ban on such rules. Among other things, such a mandate would forestall the evolution of new and potentially better rules.
In addition to banning content moderation rules that many consumers like, common carrier restrictions also create serious slippery slope risks. If the monopoly rationale for imposing common carrier rules on social media platforms is accepted, it could just as easily justify the imposition of similar requirements on many types of traditional media.
Even if Twitter and Facebook don't actually monopolize the market for political information, it's certainly true they reach various potential audiences that are difficult or impossible to reach in other ways. But, if that justifies forcing them to abjure restrictions on content, the same rationale would rationalize imposing the same requirements on other types of media. Fox News, the New York Times, the Wall Street Journal, and a variety of other major broadcast and print media outlets also reach large audiences that can't always be easily reached in other ways. By that rationale, they too can be forced to be common carriers!
Perhaps the problem is not that social media giants monopolize any audience in some economic sense, but that they have too much influence over political discourse relative to some egalitarian baseline. Why should Mark Zuckerberg's views have any more clout than those of the average American? But we can make exactly the same argument for the owners and editors of Fox News, the New York Times, and any other outlet with a large audience. They too have vastly more influence over public discourse than the average American does. And it's not clear that they are any more worthy of their influence than Zuckerberg is.
Giving government a free hand to impose common carrier restrictions on any website or media outlet that "monopolizes" a particular audience or otherwise has "too much" influence is a power that can and will be abused. Call it "common carrier creep!"
The party in power will have obvious incentives to use it to neuter media that oppose them. Even if conservatives are comfortable with giving such discretion to GOP politicians, are they equally at ease with giving it to Joe Biden, Kamala Harris, or Elizabeth Warren? How about the bureaucrats Democratic presidents are likely to appoint to federal regulatory agencies tasked with implementing such common carrier regulations (and deciding which firms should be subject to them)?
Liberal advocates of social media regulation (of whom Warren is a prominent example) should ask themselves whether they would be willing to entrust such regulatory authority to the likes Donald Trump or Josh Hawley. Given the chance, those guys would be happy to make social media great again—under their definition of greatness, of course.
Eugene Volokh worries that letting social media giants impose content moderation rules could lead to "censorship creep," as more and more groups demand the exclusion of speech they object to. It's a reasonable concern. But one mitigated by market forces. Big social media firms want as large a customer base as they can get, because that increases their profits. That makes it very unlikely that they would categorically suppress large swathes of the political spectrum, as doing so would chase away substantial parts of their audience. If they moved in that direction, nonetheless, it would only create bigger and more enticing opportunities for competitors. That's why, despite occasional unequal treatment, we still see very large amounts of right-wing speech—including pro-Trump speech—on both Facebook and Twitter. Trump may not Tweeting anymore. But a great many of his defenders and supporters are still there. The owners of those sites don't want to get rid of them all, because they don't want to lose so large a part of their customer base.
Such competitive dynamics are far less likely to stop government actors, who can impose the same restrictions on all social media firms (and other information providers, as well). If no one is allowed to post X (or at least no major site), competitive pressure is greatly diminished.
Those who worry about censorship creep would do well to focus their concerns on government regulation, rather than the behavior of private websites subject to competitive pressure. Here, there are many fewer constraints on slippery slope dynamics. Once flimsy monopoly arguments are allowed to justify imposing common carrier restrictions on social media, it will be all too easy to impose them on other major information sources, too. If conservatives succeed in imposing them on Twitter and Facebook, the left can use the same logic to impose them on Fox News and other conservative media. After all, many on the left have long argued that Fox has inordinate and undeserved clout, and that it monopolize the attention of much of Red America.
In sum, turning social media sites into common carriers is a bad idea that rests on extremely weak rationales. Even worse, implementing this idea is likely to cause a great deal of harm, and create a dangerous precedent.