Could a Platform's Terms of Service Defeat Legislatively Imposed Common Carrier Obligations?

Some commenters on the Social Media as Common Carriers thread suggested that social media platforms' Terms of Service, which users must sign, can defeat any common carrier obligations that are imposed on them.

If the argument is a normative argument—property owners should have the right to limit their visitors' use of the property, including by contract, and that common carrier status for them is improper—then I see its appeal, though I'm not sure that it ultimately carries the day.

But if the argument is that the Terms of Service would constitute a waiver of the platforms' nondiscrimination obligations, even if such obligations are imposed by a common-carrier-type statute, then I don't think it will fly.

The closest analogy I can see is the traditional common carrier duty to "exercise … care and diligence" towards their customers and their property, which the Court has held could not be waived: "[I]f a carrier stipulate not to be bound to the exercise of care and diligence, but to be at liberty to indulge in the contrary, he seeks to put off the essential duties of his employment." N.Y. Cent. R. Co. v. Lockwood (1873).

Likewise, if a nondiscrimination duty is imposed on a social media platform (analogous to such a duty imposed on traditional common carriers), the platform likewise can't stipulate not to be bound by that duty. And of course there's no reason to think that Rumsfeld would have come out differently if a university required all recruiters to sign agreements that they will recruit only if their employers forswear sexual orientation discrimination. See also Alexander v. Gardner-Denver Co. (1974) (holding that employers can't require employees to preemptively waive their rights under nondiscrimination statutes as a condition of employment).

Comments

[DaivdBehar]

Has Eugene ever read any in their entirety, understood, and agreed to them, on any platform he has ever used. Try it.

Those are all unconscionable in procedure and in substance, and void, being adhesive, tiny fonted, voluminous, written above the 6th grade level, incomprehensible even to legal experts, like federal judges. They cover an essential utility service,

They are unlawful appropriation of personal value and information without compensation. Stealing and invasion of privacy should not be allowed in a contract. They are in the service of the Chinese Commie Party, and may be shared with those authorities. An aggregate claim should retrieve the value of the personal information to the users. I estimate it is worth half the gross revenue of these pirates.

Your phone's gyroscope is reporting you to Chinese Commie headquarters and to anyone who wants to pay for that information, when you are making love to your lady, in the dark, in the middle of the night. If someone peeped in your window, you would have them arrested. The smart TV you left off, may also have a recording of that if you would like to relive the moments. Utter something about having trouble, get ads for lubricants all over the internet the next day.

Yet the lawyer profession, these fucking traitors to our country, is doing nothing.

[Krayt]

A priest just resigned because his gay Grinder travels were deanonymized from phone location data that was purchased through normal business offerings, in spite of it being guaranteed private.

I don't lament that a hypocritical liar was caught, but that the infrastructure to do so is in place, and no time will be wasted abusing it. Almost certainly state sponsored orgs and others will already have all this automated.

[Lee Moore]

What's the law on assigning legal rights, or assigning the benefit of legal actions ?

If you're allowed to assign the benefit of your legal rights, then if a statute gives you an unwaivable right against Employer A, can Employer A's owner agree to purchase the benefit of your legal rights from you ?

[apedad]

"Likewise, if a nondiscrimination duty is imposed on a social media platform (analogous to such a duty imposed on traditional common carriers), the platform likewise can't stipulate not to be bound by that duty."

Prof. Volokh, would you have to change your Editor's Note?

"We reserve the right to delete any comment for any reason at any
time."

[Eugene Volokh]

1. My argument is chiefly focused on what I called the social media platforms' "hosting function": Their making available materials to people who have affirmatively sought out those materials, or subscribed to them. I argued in this post that a platform's "conversation function" -- its function of curating comments and similar material submitted by other people, to whose work readers hadn't subscribed -- should generally be protected by the First Amendment:

My Twitter feed or my Facebook pages is pretty much an "individual, unrelated segment[] that happen[s] to be transmitted together" with others' feeds and pages on Twitter and Facebook servers "for individual selection by members of the audience."[261] Such members of the audience view my feed and your feed and someone else's feed as separate items that they have individually selected to follow or visit. But my comments on your Twitter feed or Facebook page don't just "happen to be transmitted together" with others' comments on the same material; they are consumed by readers (including both you and your other readers) together, as part of a conversation. Platform editorial judgments can help influence whether it's a polite conversation or a rude one—and if the conversation is polite, that will usually encourage more people to participate in it.

And it strikes me as even clearer that moderation by a page operator, as opposed by the platform operator, is a valuable and constitutionally protected form of editorial judgment. Perhaps I'm mistaken, but that's the argument I made (of course, in more detail than just the excerpt above reflects).

2. But if I'm wrong and such limits on comment moderation are constitutional, and if the law chooses to apply those limits to small sites and not just big social media platforms, then I'd change the note.

[Josh R]

Didn't you also argue the law could condition liability protection for the Volokh Conspiracy on you being viewpoint neutral in moderating comments. Under that law am I then correct, you would have to either 1) change the note or 2) not permit comments? Assuming am I right, which option would you choose?

[MatthewSlyfield]

The only choice EV could make is 1. As I understand it, 2 would have to be made a the top level of the Reason organization and would apply globally to all Reason articles, not just VC.

[Eugene Volokh]

Josh R: If they do switch to a quid pro quo model, then I'm inclined that I'd rather get immunity and allow comments on a viewpoint-neutral basis. I'm fine with letting most of the moderation happen by individual users via Mute User.

[ah....Clem]

I'm not a lawyer, but my general impression is that there are things that you can't sign away via contract (i.e.a TOS). For instance, a restaurant or hotel can't put into their TOS that they don't accommodate minorities. So I don't think a social media site could just wish away whatever regulations might be imposed by placing magic legal words in the TOS.

But I could be wrong about this, especially if the regulations are as poorly written as the Florida ones were.

I think a bigger issue is with the sites that use complex algorithms to determine who sees what - facebook seems to be the leader in that field, and it's almost certainly the key to its success - they show you stuff that engages you and "hide" stuff you are less likely to be interested in based on what they know about you. YouTube does the same. So does NPR One, Google News, Spotify, and many other "bespoke" sources.

How does "must carry" interact with the complex algorithms used to tailor a custom experience to each user? To take an extreme example, suppose facebook "complied" with must-carry by instead of taking down a post simply failed to show it to anyone. How would you craft legislation to prevent that without destroying the very thing that makes the site so popular?

Florida tried this by disallowing use of any "algorithm" to display posts by elected officials, but as anyone with experience in computer programming can tell you *everything* the computer does is an algorithm. Even something as simple as "SELECT * FROM POSTS ORDER BY create_ts DESC" is an algorithm. Epic fail in the authors of the legislation.

As they say, for every problem there is a solution that is simple, neat — and wrong.

[John F. Carr]

Some rights can't be waived and the common carrier rule can be written to make that clear. As long the Federal Arbitration Act maintains its current power the waiver might be upheld despite a law to the contrary.

[tkamenick]

"But if the argument is that the Terms of Service would constitute a waiver of the platforms' nondiscrimination obligations" I don't think that's the argument, or at least the whole argument. By writing its TOS a certain way, a service can define itself in a way to make it clear that it is NOT a common carrier.

[MatthewSlyfield]

"By writing its TOS a certain way, a service can define itself in a way to make it clear that it is NOT a common carrier."

That might work against courts declaring them a common carrier, but I don't think that would work if the US Congress passed a law that says they are a common carrier.

[Darwinnie]

The first idea is closer to correct. The service defines the terms of the platform it provides. Users can agree not to use it if they don’t like them. And they can go to Parler or whatever.

It really depends on your starting view. If you want to stop platforms from moderating users’ posting then you’ll ignore the TOS. But if you start without a preconceived goal, I think the TOS are critical.

BTW, I’ve never heard of political speech being a protected class for discrimination. That seems like a big a stretch.

[Jay Ash]

Greyhound Bus lists on its site on a page titled "Your rights & rules on board" that

+ Absolutely no alcohol, drugs or weapons anywhere on the bus (including in your under the bus baggage).

+ This is a stickler for us – no unruly behavior on the bus. No shouting, being loud, or generally disturbing the driver or other passengers. Just chill out, be nice and enjoy the ride.

Am I right to think that your point is that under common carrier regulations Greyhound cannot discriminate against the military, but can certainly impose specific Terms of Service that allow it to kick people off who break its rules apart from any regulations that demand no discrimination against X, Y, or Z?

So Twitter might still be able to ban anyone who generally acts like a prat and harasses other users?

How would that apply to people who are seen to harass others, or dox others, or spread "covid misinformation"?