The Volokh Conspiracy

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Free Speech

"Social Media and Common Carriage: Lessons from the Litigation Over Florida's SB 7072"


Corbin Barthold of TechFreedom has this article up at the Washington Legal Foundation site, which offers a different analysis from the one in my Treating Social Media Platforms as Common Carriers? article; I thought I'd pass along the link, together with the opening paragraphs:

In April, Justice Clarence Thomas, writing for himself in an otherwise unrelated case, speculated about whether large social media websites should be treated as common carriers. The following month, Florida Governor Ron DeSantis signed into law SB 7072, a sweeping set of restrictions on how the companies that run such websites shall moderate what is said on them. SB 7072 forces the likes of Facebook and Twitter to host various categories of speech against their will. Florida may do this, SB 7072 says, because "social media platforms" may "be treated similarly to common carriers."

SB 7072 was bound to get challenged in court, and that litigation, in turn, was bound to test the common carriage theory put forth by Justice Thomas. So it has come to pass. Two groups of internet companies promptly sued, a judge issued an order preliminarily enjoining most of the law, and Florida appealed. Both the judicial opinion, written by federal District Judge Robert Hinkle, and Florida's opening brief on appeal, filed earlier this month in the U.S. Court of Appeals for the Eleventh Circuit, address whether it makes sense to treat social media as common carriage.

What can be learned from these discussions of the common carrier theory? Judge Hinkle concludes that social media websites are somewhat like common carriers, but ultimately more like traditional speakers fully protected against government-compelled speech (hence the preliminary injunction). Florida, naturally, argues the common carrier theory to the hilt, relying heavily on Justice Thomas's work along the way. Neither the judge nor the state depicts common carriage in a way that's at once accurate, useful, and convincing. Identifying the holes in their thinking returns us to a conclusion that would, in a less anxious time, be obvious to all. Websites—even large ones that host the speech of others—are engaged in expressive conduct protected by the First Amendment.