The Volokh Conspiracy

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Free Speech

Prof. Ashutosh Bhaghwat vs. Me on Whether Social Media Platforms Should Be Treated Like Common Carriers


The Catholic University of America Columbus School of Law hosted this debate last week as the inaugural event in their new Seigenthaler Debates series, cosponsored with The Free State Foundation and Catholic Law's chapters of the American Constitution Society, the Federalist Society, and the Law and Technology Student Association; Ninth Circuit Judge Lawrence VanDyke was kind enough to agree to moderate it. I much enjoyed it—it's always a pleasure to be on a panel with Prof. Bhaghwat—and I hope you do too!

NEXT: No Preliminary Injunctions Against Libel

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  1. They have become essential utility services, like electricity and water. Those utilities may not turn on or off services to people they do not like. This is self evident except to lawyer dumbasses like Volokh.

    1. Put this in your aggregate claim folder. The value of the personal information is some fraction of gross revenue, but it is from 50% to 95%. Debate the amount. What is not debatable is the theft of it by social media. Retrieve that value from these pirates for the users.

      1. The User Agreements are unconscionable in procedure and in substance. They are inscrutable. The size of the parties is asymmetrical. They are of adhesion. They consent to crimes, theft of information, invasion of privacy, spying.

        Lawyer asshole, Volokh, is clueless or worse, a denier fronting for the tech billionaires.

  2. Utilities like landline phone, electric and water are also granted territorial monopolies. So common carrier responsibilities, and monopoly privileges go hand-in-hand.

    AFAIK, nobody is suggesting that we give these social media platforms a legally enforceable monopoly.

    1. Aren't cell phone companies, UPS, FedEx, etc common carriers? (IANAL) They don't have territorial monopolies.

      1. None of those are common carriers, so far as I know. All of them can refuse service to anyone they want.

        1. I went a'googlin, and now I'm confused. One complication might be that they both offer various carriage services, some of which might be common carriers and some might not be.

          I found a page that flatly stated they aren't a common carrier. I think that was referring to the 'normal' ups, not the various freight divisions. But I also found newspaper articles about Fedex ... seems people were shipping drugs via Fedex, and part of Fedex's defense was that it is a common carrier. And that matters, because apparently the Controlled Substances has exceptions that apply to common carriers. Hard to see how Fedex and UPS would be different in that regard. Anyway, now I'm really confused.

        2. And FWIW on cell phone companies:

          "Carriers follow strict rules when they handle phone calls, preventing them from blocking most calls or using the content of calls to collect marketing information. Those calls are classified as Title II, or common carrier, cellular traffic under the federal Communications Act."

          1. Yeah, I had checked myself via some Googling and I think I got turned around between cellular phone and cellular data. But not fiber optics...for now.

            Looks like there was an on point statute - telecommunications act of 1996.

            `(49) TELECOMMUNICATIONS CARRIER- The term
            `telecommunications carrier' means any provider of
            telecommunications services, except that such term does not
            include aggregators of telecommunications services (as defined
            in section 226). A telecommunications carrier shall be treated
            as a common carrier under this Act only to the extent that it
            is engaged in providing telecommunications services, except
            that the Commission shall determine whether the provision of
            fixed and mobile satellite service shall be treated as common

            No mention of cellular, though, so I may be off base.

    2. With some exceptions, those utilities were not granted territorial monopolies, society simply recognized that the inherent economies of the business model made them into natural monopolies.

      Similarly, no one needs to give the social media platforms a legally enforceable monopoly - the Network Effect naturally creates one. Or, at least enough of one to support an argument for common carrier status.

      1. Under antitrust, at least, network effects alone don't cause a monopoly - you need something more structural going on. (To be fair, such actions seem evident in Google and Facebook IMO)

        I learned this on the VC, in fact!

  3. All this is after the fact handwaving.

    The grotesque constitutional violation was politicians threatening to alter or abolish section 230, opening tech giants up to lawsuits, crushing their stock valuations.

    "Unless you censor harrasement. Oh, please start with the harrassing tweets of our political opponents just before this election!"

    Which was done.

    All these politicians need to be jailed for violating free speech rights.

    So arguing common carrier stuff is a fix for a problem created by evil, power hungry politicians (snafu) that shouldn't have been allowed in the first place.

    1. This is not a constitutional violation.

      In fact, 'regulate yourself or we'll regulate you' is the small government choice. Consider the alternative!

      It's been a thing for the past century at least.

      All these politicians need to be jailed for violating free speech rights.
      This says a lot more about you than it does about the politicians.

  4. The purpose of the proposed common carrier designation is, of course, to create a government power to inflict regulations on publishers' discretion to decide what to publish and what to exclude. In short, Professor Volokh's advocacy is a full-strength, open-ended attack on press freedom.

    Over a long series of posts, stretching back years, Professor Volokh has shown himself a zealous advocate of speech freedom—an advocate so zealous in fact that he views press freedom and speech freedom as being in tension, to the disadvantage of speech. Coming as it does from a First Amendment legal expert, Professor Volokh's advocacy to suppress press freedom is both surprising and unwise.

    1. If the law treated these services as publishers, you might have an argument. As it is, your argument is incoherent.

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