Journal of Free Speech Law: "Why Social Media Platforms Are Not Common Carriers," by Prof. Ash Bhagwat (UC Davis)

Just published at 2 J. Free Speech L. 127 (2022), as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the Abstract:

In a recent opinion respecting denial of certiorari, Justice Clarence Thomas expressed concerns about the degree of control that a handful of social media platforms exercised over political discourse, and suggested common carrier regulation as a potential solution to this perceived problem. The States of Florida and Texas promptly adopted legislation restricting social media companies' ability to control content and users on their platforms, explicitly citing the common carrier concept in support. In this paper, I argue that even under Justice Thomas's (probably incorrect) definition of common carriage, and certainly under the traditional definition, platforms simply are not common carriers. They do not possess any of the characteristics that Justice Thomas himself cited as typical of common carriers; and, more fundamentally, they lack the necessary characteristic—indifference to the content they carry—that is typical of communications common carriers.

Indeed, and ironically, it is precisely because platforms are not indifferent to content, and act on their preferences (in particular by deplatforming President Trump), that Thomas proposed, and Florida and Texas adopted, platform regulations. These regulations, however, clearly violate the First Amendment, and appear to be headed for rapid judicial invalidation. Social media platforms, in short, are not common carriers, and cannot be forced to become ones by legislative fiat so long as the First Amendment remains in force. This essay concludes by arguing that common carrier regulation of social media platforms is not only unconstitutional, but also a terrible idea as a matter of public policy.

Comments

[Drbusybody]

He shouldn't have mentioned repealing the First Amendment.

[mulched]

Yet another analysis that conflates the messaging aspect of SM platforms with curation and promotion.

BTW the link just redirects me back to this page.

[ReaderY]

Whites only establishments in the era of segregation, including those involved in transportation and communications, were obviously not indifferent to whom they served. They were particular, indeed discriminating, about it. By Professor Baghwat’a definition, this means they weren’t common carriers. So far so good.

But Professor Baghwat seems to go farther. He seems to be arguing that because something isn’t a common carrier, laws forcing it to act as a common carrier are wrong, that is, how things have been in the past should be dispositive regarding how things should be.

So my question for Professor Baghwat is this. Suppose a phone company refused to serve black customers. Would it be protected by the First Amendment? It would appear to be. It is engaged in the business of speech. And by his definition, the act of discrimination is itself sufficient to eliminate traditional common carrier status. And it is not a traditional common carrier, then the First Amendment protects its right to discriminate.

Professor Baghwat’s view seems to be, pretty much, that which is, is of right. It’s an essentially circular definition. If the only wharf in town historically picked and chose which customers it served, it wouldn’t be a common carrier either by this definition, and hence would be ENTITLED to continue to pick and choose its customers forever.

In Alabama, as part of the pervasive extra-legal social control exercised over black people which went well beyond lynchings, the post office simply refused to deliver mail to or from anybody who filed a civil rights type suit, forcing such suits to be dismissed for want of prosecution. By Professor Baghwat’s argument, this content-based selectivity, would entitle the Post Office (if it were a private entity) to continue doing this indefinitely, protected by the First Amendment.

[CJColucci]

Suppose a phone company refused to serve black customers. Would it be protected by the First Amendment?

As the famous New Yorker cartoon says: On the internet, nobody knows you're a dog.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Then make the obvious extension to rejecting phone calls when anyone in the call sounds black. Or rejecting all black customers.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Suppose a phone company refused to serve black customers.

That was my question too.

Social media platforms, in short, are not common carriers, and cannot be forced to become ones by legislative fiat so long as the First Amendment remains in force.

Does the First Amendment not apply to telephone calls?

[Stephen Lathrop]

Does the First Amendment not apply to telephone calls?

The press freedom clause does not apply to telephone calls, but does protect internet publishers. If by some hard-to-imagine contrivance you could turn telephone calls into a publishing medium, then the press freedom clause would protect them, and you could not require them to be common carriers.

[ReaderY]

The First Amendment doesn’t apply to telephone calls? The government can censor them at whim? Really?

This is complete nonsense. Of course the First Amendment applies to telephone calls, just as it applies to social media posts. It permits government to protect the freedom of the CALLERS, just as it permits government to protect the freedom of social media POSTERS.

Note that Stephen Latrope is saying out loud the exact implication I stated in my hypothetical curational mail service: the callers (the users of the service) are irrelevant so far as social media’s First Amendment status is concerned. They don’t matter.

[David Nieporent]

Note that Stephen Latrope is saying out loud the exact implication I stated in my hypothetical curational mail service: the callers (the users of the service) are irrelevant so far as social media’s First Amendment status is concerned. They don’t matter.

Why would the users be relevant to discussing the 1A rights of the companies? The 1A applies only, of course, against the government; a private company choosing on its own to moderate/censor/etc. a user has no 1A implications.

[Stephen Lathrop]

ReaderY — You overlooked that I narrowed the question, and answered in terms of press freedom, not the 1A in its entirety. That was appropriate, because the distinction you asked about is best critiqued in terms of press freedom, but not the other 1A guarantees.

[iowatwo]

What you are missing is "protected classes". Blacks won the lottery first, then women. Now it extends to people that claim particular sexual fetishes. If you can get congress to put you in a "protected class" the world will open wide before you.

[David Nieporent]

The ignorant chip on your shoulder aside, that's not how it works.

[Rev. Arthur L. Kirkland]

Blacks won the lottery first, then women.

This blog and the disaffected, obsolete, bigoted right-wing fans it attracts deserve each other.

Whining faux libertarian hypocrites might be my favorite culture war casualties.

[David Nieporent]

But Professor Baghwat seems to go farther. He seems to be arguing that because something isn’t a common carrier, laws forcing it to act as a common carrier are wrong, that is, how things have been in the past should be dispositive regarding how things should be.

I've repeatedly argued that in opposition to your arguments, because it's obviously correct: the government cannot evade 1A protections against compelled speech simply by relabeling the speaker. "Common carrier" is not a magic incantation. It's a descriptive term for businesses that have certain characteristics. If they don't have those characteristics, the government cannot compel them to adopt those characteristics and then say, "Oh, well now do you have them (because we forced you to) so we can now coerce your speech."

[One clarification: the 1A is only implicated in the speech context. If we're talking about, say, railroads, the 1A doesn't protect their decisions about who to transport.]

So my question for Professor Baghwat is this. Suppose a phone company refused to serve black customers. Would it be protected by the First Amendment? It would appear to be.

No, it wouldn't. As we've discussed in the wedding context, the choice of who to serve and the choice of what message to disseminate are not the same thing.

If the only wharf in town historically picked and chose which customers it served, it wouldn’t be a common carrier either by this definition, and hence would be ENTITLED to continue to pick and choose its customers forever.

…if a wharf were in the speech business, which it isn't.

By Professor Baghwat’s argument, this content-based selectivity, would entitle the Post Office (if it were a private entity) to continue doing this indefinitely, protected by the First Amendment.

But since it isn't a private entity, this is irrelevant.

[Josh R]

I agree that discrimination ought not be sufficient for not being a common carrier. But if it were, you asked:

Suppose a phone company refused to serve black customers. Would it be protected by the First Amendment? It would appear to be. It is engaged in the business of speech.

Or perhaps an anti-discrimination law regulates conduct and its impact on speech in this application is incidental.

[F.D. Wolf]

A common carrier is what a legislature or court says is a common carrier.

This is perverse, circular reasoning: “We discriminate as to content we permit, so we are not a common carrier, and since we are not a common carrier, we can discriminate as to the content we permit.”

Could AT&T get away with this? Cut your service because it didn’t like the content of your text messages? Or your phone calls?

[David Nieporent]

That's not at all perverse reasoning. What's perverse is to suggest that the government can abrogate someone's free speech rights by saying, "No, we declare you to be a common carrier."

A company can choose to adopt the characteristics of a common carrier. If it does, then certain restrictions are imposed on it, but it also gets certain benefits. Or the company can choose a different business model.

[F.D. Wolf]

I can only imagine the deep anguish of the Left on this issue, which I am certain is based on deeply-held principle, and is not merely situational. I know how averse they are to government regulation of business, particularly when it comes to anti-discrimination laws. I know how deeply they believe in the First Amendment rights of businesses, as anyone who remembers the hysteria surrounding the Citizens United decision will recall.

Thoughts and prayers.

[David Nieporent]

I am pretty sure the left did not elect me as their spokesperson, and they are unlikely to ever do so. So you'll have to ask them.

[Sarcastr0]

Liberals like myself like good regulations, not every regulation ever conceived.

I hope this helps demystify things for you.

[ReaderY]

I think there are two elements to this:

1. You business has to consist, in major part, of transmitting other people’s messages. I think major social media platforms easily meet this.

2. You have to be a big player, so as a practical matter ordinary people rely on you to transmit their messages. Again, I think the top social media companies also easily meet this.

I think if you meet both criteria, government can declare the message-transmission part of your business a common carrier and ask you to separate other parts of your business from it.

I think the post office is a good example. One can imagine a “mail curation service” that delivers mail free, in exchange for opening it, selling its contents to advertisers, inserting advertisements in before delivering, and rejecting mail that doesn’t fit with its image.

But the law makes mail curation service business illegal, because it forbids the things such a service does. Mail carriers have to make their money by charging to deliver.

A mail carrier could go into advertising curation legally in a partial way. It might sell advertisers nformation about you based on what’s written on the outside of the envelopes it delivers to you. (Not sure if thst’s legal, but let’s assume it is.) But it would have to do that without opening your mail, without delivering the information inside that mail to advertisers, and without refusing to deliver mail whose content it doesn’t like.

I think government can impose laws restricting advertisement curation by social media platforms similar to the restrictions currently inposed on advertisement curation by letter carriers. It can focus on what society regards as the primary business – message transmission – and consider advertisement curation a side business. And it can force people in the message transmission business to make their money by charging for message transmission. It can make a business model offering free message transmission services in exchange for unrestricted use of the message content to curate advertising illegal, just as such a business model is illegal for letter carriers to do.

In other words, government can simply outlaw social media platforms’ current business model. The fact that they’ve used this model in the past doesn’t give them a right to do so in the future.

Imagine the arguments that lawyers might make for a letter carrier that tried to offer free mail delivery in exchange for opening people’s mail and using the message contents to curate advertising. “We’re simply not a mail carrier” they would say. “We’re an advertising curation service. We can’t be in the mail delivery business, because we don’t make any money from it. All our money comes from message curation. Advertisers are our only paying customers. Since that’s how we make our money, that’s what our business is and who it’s for. The people whose messages we incidentally transmit in the process of going about our advertising business simply don’t count for anything as far as our business is concerned.”

One can easily imagine courts’ response to such arguments. Bullshit. It is the essence of a representative democracy that ordinary people count for something. And in such a polity, legislatures are entitled to categorize businesses based on their function in society, based on how ordinary people see and interact with them, and are entitled to flatly ignore how the leaders of these businesses see themselves or wish to be seen. Legislatures are fully entitled to focus on the non-revenue-generating message transmission element of a dual message transmission/advertising curation business, make that the trigger for common carrier status, and require the advertising curation element of the business to be fit within its confines if it is to be allowed to continue to exist at all. If it can’t make money within those confines, the business needs to charge for message transmission like pure message transmission companies, and make money from that.

[David Nieporent]

But the law makes mail curation service business illegal, because it forbids the things such a service does. Mail carriers have to make their money by charging to deliver.

You keep saying this without presenting the slightest bit of evidence that it's true.

1. You business has to consist, in major part, of transmitting other people’s messages. I think major social media platforms easily meet this.

2. You have to be a big player, so as a practical matter ordinary people rely on you to transmit their messages. Again, I think the top social media companies also easily meet this.

No, actually, this is all wrong. The social media companies are not in the message delivery business (with the exception of DMs, I guess, which are a pretty small part of their services). They are in the distribution/publishing business. (Obviously in a sense the NYT is transmitting someone's message whenever it prints a LTTE for the public to read, and Barnes & Noble is transmitting someone's message whenever it sells someone's book to someone else. But that is not the essence of what they are doing.)

In other words, government can simply outlaw social media platforms’ current business model. The fact that they’ve used this model in the past doesn’t give them a right to do so in the future.

Sure, in much the same way that the government can tell the NYT that it must make money from selling subscriptions and cannot print ads in the paper, which is to say that your contention is loony.

It is the essence of a representative democracy that ordinary people count for something. And in such a polity, legislatures are entitled to categorize businesses based on their function in society, based on how ordinary people see and interact with them, and are entitled to flatly ignore how the leaders of these businesses see themselves or wish to be seen.

It is the essence of a free society that ordinary people do not count for anything when trying to control other people's speech.

[Stephen Lathrop]

ReaderY, you comment consistently as an internet utopian. By that I mean your view of internet publishing focuses almost exclusively on issues related to content, especially with an eye to optimizing access for would-be opinion contributors.

So long as you rely on that too-narrow approach, your advocacy will remain utopian, by which I also mean self-defeating. It is not possible to accomplish sustainable internet publishing by use of your model.

Publishers must have liberty to publish at pleasure whatever content they carry—for business reasons, or for expressive reasons—or they will go out of business. Press freedom depends critically on public policy to keep in business a profusion of diverse publishers to compete with each other for specific content-interested audiences.

The press freedom clause of the 1A guarantees them that liberty, but even if it did not, the practicalities of the publishing business dictate that as a business necessity. Government is powerless to change that.

By way of explanation, permit me to offer you a more general problem to consider. On what basis except self-sustaining publishing-business profits can you imagine payment for the means and activities necessary to sustain press freedom? Absent some kind of independently-raised income, a publisher’s output would necessarily fall under the influence of whatever source supplied money to keep it going.

That source could be government, it could be private-interest finance, it could even be consumer subscription fees (much better for freedom than the other two, but usually impractical in practice)—but in every such instance, the publisher would lose most of the expressive independence which a typical publishing business model—predicated on a publisher at liberty to accept or reject contributions at pleasure—enables.

[David Nieporent]

The above comment was written by ChatGPT.

[ReaderY]

Consider a postal correspondence group of 10 or 100 or 1000 people. The group operates by members mass-mailing each other. Conversations go slowly and expensively, by members mailing everyone in the group in response to previous letters.

Now, suppose that group moves to Facebook and uses Facebook to do what it used to do by mail.

What exactly is the difference between what Facebook is doing for this group and its members that the postal service didn’t do? What makes it a publisher when the postal service wasn’t?

Is Facebook doing anything different, anything at all, other than (1) displaying ads along with the posted messages, (2) using the content of the group’s messages (after “opening” and reading them) to determine what ads to display, (3) occassionally censoring messages it doesn’t like, and (4) not charging the group or its members for delivering the messages because it makes its money from advertising?

If it is doing something different, what? And if not, why in the world does that amount to “publishing”?

So far as the group’s members are concerned, Facebook is exactly duplicating my hypothetical free “curated mail” service that opens mail, reads the contents, inserts ads into the mail based on the contents, occassionally refuses to deliver mail whose content it doesn’t like, and makes its money from the advertisers.

[Stephen Lathrop]

ReaderY — The difference is that the postal service is not a publisher, and does not practice publishing-type activities. It accepts all comers on an individual basis. As you observed yourself, that creates a relatively expensive model for communication, which a postal service charges for by the piece.

Your hypothetical bypasses the publishing activity to attract and curate an audience. Which happens by the publisher’s activity to control what content gets offered to it.

You just assume the audience into existence. A publisher cannot do that. Instead, at an inevitable initial loss, a publisher creates or chooses content, then offers it to the public at large, to accept or reject at pleasure. By that means the would-be publisher creates an initial audience. The publisher then further curates that audience, using more content-related choices to do so. The publisher does that with an eye to creating an audience with characteristics which the publisher estimates will be of interest to would-be advertisers.

Then the publisher sells the attention of the audience it created, as a product, to the advertisers. In that way the publisher creates for itself a stream of revenue independent of the whims of individual would-be opinion contributors, or would-be opinion consumers. The publisher does that by means with which government cannot readily interfere.

That was in fact the newspaper publishing model the founders relied upon to create the revolution, and to found American constitutionalism. Which explains why there is a press freedom clause in the Bill of Rights, in addition to a speech freedom clause.

By contrast, your suggestion would put the publisher at the mercy of would-be opinion contributors, and enforce that by government edict. I get that a publisher at the mercy of opinion contributors is what you want—or at least the only means you can think of to get what you want. So you are willing to encourage government censorship to get it. But there is no press freedom in what you propose.

All that comes before you get to the practical absurdity to assume cost-free, world-wide publishing for everyone could ever be made economically viable on the basis of un-curated content. You cannot sell un-curated content to advertisers. There is too much swill in it, with which advertisers refuse to associate their brands. And you cannot bill anonymous would-be contributors of swill for the privilege to drive advertisers away. They will not pay.

There is no money in that business model, and thus no basis for the sine qua non of press freedom, which is an adequate revenue source which the publisher itself can manage and control.

[ReaderY]

You’re seriously claiming Facebook’s audience is there because Facebook engages in its “curating activities” to “attract an audience?” Thay’s what attracted the user base?

Nonsense. Facebook’s audience was attracted to it, and is there, because Facebook enables people to communicate with their friends in a a more efficient and lower-cost manner than phone calls and mail.

All Facebook’s so-called “curation” activities you’ve been focusing on are, from the users’ point of view, nothing more than a nuisance the users have to put up with in order to be able to communicate with their friends for free. You think any user likes the “curated content” Facebook pushes? It’s a damned nuisance.

A legislature is entitled to see things as the users see them, not as the company’s lawyers and image-spinners would like the company to be seen.

Nor does a legislature have to take Facebook’s form contract, and its gobbledygook recitation that Facebook rather than the users owns the content and Facebook is “publishing” it, at (forgive me) face value. Functionally, legalese aside, what users post is the users’ content, not Facebook’s. Far from heing some sort of exalted publisher, Facebook is, functiknally from a user’s point of view, merely being a common carrier.

[ReaderY]

I’m not saying the social media CEOs and their circle are lying. It’s been part of the culture for several decades for such people to think of themselves as God’s gift to the universe and the most super-cool thing there is, and to think that what they have to say is the most important thing to be said and everyone is there solely to hear it, and eagerly. They are no doubt being completely subjectively honest by presenting themselves this way. No doubt it’s really the way they think.

It’s just that the rest of the world doesn’t have to think that way. They don’t have to buy it. The people, through their elected representives, are entitled to burst their bubble and deflate their sense of self-importance.

[Stephen Lathrop]

You think any user likes the “curated content” Facebook pushes? It’s a damned nuisance.

You do not even understand who the, "user," of Facebook actually is. It is the advertiser—the only party paying for the content. And the advertiser is the party demanding the curation.

Your commentary continues utopian. No amount of repetition will enable the impossible.

I should note in passing that I disapprove of social media as it now runs as much as anyone, and having been disapproving that longer than almost anyone. I have no more power than you do to turn that disapproval into a legal fiction in defiance of reality.

There are other, non-utopian ways to rein in the tech giants—and even to humble them if you insist on that too. To continue with the demands you make now will just waste your time.

And by the way, if Facebook got so rich and influential without doing anything to attract an audience, let's you and I get together, and get on that gravy train ourselves. Or, on second thought, do it yourself. I have no time to waste on pure fantasy.

[David Nieporent]

Nor does a legislature have to take Facebook’s form contract, and its gobbledygook recitation that Facebook rather than the users owns the content and Facebook is “publishing” it, at (forgive me) face value. Functionally, legalese aside, what users post is the users’ content, not Facebook’s.

This part is just based on a false premise. Facebook and other social media companies do not claim to be the owners of the content. Not sure where you got that idea. The users retain ownership (of the copyright, which is what I assume you mean). By using the site they merely grant a license to the company and to other users.

https://www.facebook.com/legal/terms

It's right there in Paragraph 3.3 "The permissions you give us."

[David Nieporent]

You just assume the audience into existence. A publisher cannot do that. Instead, at an inevitable initial loss, a publisher creates or chooses content, then offers it to the public at large, to accept or reject at pleasure. By that means the would-be publisher creates an initial audience. The publisher then further curates that audience, using more content-related choices to do so. The publisher does that with an eye to creating an audience with characteristics which the publisher estimates will be of interest to would-be advertisers.

Once again: no. That's not what a publisher is.

A publisher can do those things, but they aren't what define publishing. Publishing need not involve advertising. It need not be for remuneration at all. It need not be for the public at large. While publishers almost always want an audience (if a screed is published in a forest and nobody's there, does it make a sound), it not be trying to grow or create or curate that audience. It may indeed start with an audience rather than a product.

You are taking your myopic view of the world based on your own newspaper career and deciding that this is what defines publishing.

But my synagogue publishes periodic newsletters. It does not do so to attract advertisers. It does not do so to make money at all. It does not do so to attract the public. It does not try to create or grow its audience. It does in fact have its audience handed to it.

[Stephen Lathrop]

Nieporent, your objection is on-point, but pointless. I have never claimed that the publishing model you critique was exhaustive. To the contrary, I have said again and again that other publishing models exist. But it does happen to be the publishing model which applies most closely not only to typical newspapers—during the founding era and today—but also to the social media giants. They are all publishers alike. On that basis press freedom protects not just their speech, but the activities they practice to facilitate publication.

[DaveM]

When an IT worker reads a phrase such as “common carrier” what instantly leaps to mind is the very real technical distinction between infrastructure and application. Infrastructure is the baseline technologies one needs in order to make any use of the public networks, regardless of what that use may be. Applications are the particular uses themselves.

Internet Service Providers, Amazon AWS, MS Azure, and Google workspaces are infrastructure. Payment processors, clearinghouses, merchant banks are infrastructure. Cloudflare, domain registrars, network hardware vendors, operating system vendors, and browser vendors — all are infrastructure. The specific content on those services is irrelevant to the provider, all content is treated the same.

Social media, blogs, news organizations, corporate websites, music services, and so on are applications that run on top of the infrastructure. The specific content on those services are absolutely relevant to the provider. The content IS the reason for the application.

There is a very strong case for treating infrastructure companies as Common Carriers. There is no case at all for treating applications that way.

As a case in point, what made the dismemberment of Parler so incredibly offensive was not that Twitter banned them, but that the payment providers banned them and AWS banned them. It was a step way over the line, technically. It sent chills into the heart of every application provider on the Internet. We knew that our entire life’s work could be thrown into darkness on a whim.

[DaveM]

I forgot to use the example of the Internet protocol stack itself. There are multiple layers involved in sending a message, for example, sending a message entails a physical hardware connection, and there is a protocol for that. On top of that there is a data transmission task, and there is a different protocol for that. On top of that are cryptographic exchanges. On top of that are information exchanges, and so on. In all, there are seven layers.

The key insight is that only the top-most layers are concerned with the content. All the others are “infrastructure”. It is absolutely unacceptable for a lower level to decide it will or won't transmit a message that is properly submitted. In fact, the lower level lacks even the specialized knowledge needed to get at the content.

International standards bodies have met since the earliest days to work out agreements on these infrastructure-level protocols. So even though the Internet governance may not use the term “common carrier”, it most certainly implements its principles, trillions of times every day.

[ReaderY]

Surely you would agree that the previous generation’s distinction between operating systems and applications is obsolete. Payment processors, Amazon, etc. aren’t running operating systems. They’re running what the previous generation would have called applications.

All that’s happened here is that the distinction between infrastructure and application has moved further. Much as a payment processor is functionally infrastructure (from a user’s point of view) even though from an electrical engineering point of view it’s an application, social media platforms have a significant component of infrastructure from a user’s point of view because a key way ordinary people use them is to maintain communication with friends and acquaintances in a manner similar to (but with more features and greater scalability than) mail or telephone. In that sense, they are functionally infrastructure, despite being an application from a software engineer’s point of view.

[DaveM]

No, I don’t agree that the distinction between an operating system and an application is obsolete. Quite the contrary.

A social media platform is not providing a common service in the same sense as an ISP at all. Now, you say that it is "functionally" infrastructure, but that misses the point. Functional to whom? Common infrastructure is what needs common carrier status.

[Michael Ejercito]

Social media, blogs, news organizations, corporate websites, music services, and so on are applications that run on top of the infrastructure. The specific content on those services are absolutely relevant to the provider. The content IS the reason for the application.

That depends on how they advertise themselves.

The Fifth Circuit noted that Twitter advertised themselves as the "free speech wing of the free speech p[artty", and ruled accordingly.

Then there are anti-discrimination laws. If a social media platform banned all content promoting the doctrines and beliefs of Roman Catholicism, is that discrimination against Roman Catholics? Would applying anti-discrimination alws in this context violate the First Amendment?

[DaveM]

As I noted below, I am unconvinced that the way one "advertises" oneself ought to have any weight. How you advertise yourself is just like your opinion, man. Donald J. Trump advertises himself using all kinds of superlatives, but none of those have any legal bearing.

[David Nieporent]

Would applying anti-discrimination alws in this context violate the First Amendment?

1,000% yes.

[Michael Ejercito]

I have a few obserrvations.

- First and foremost, law often steps in when ethics fail. And ethics failed.
- One indicator of common carrier status is how a business advertises itself. In NetChoice v Paxton, the Fifth circuit noted that Twitter had advertised itself as the "free speech wing of the free speech party". p. 2 In oral argument, Twitter itself had argued that despite having advertised itself as such, "it could turn around
and ban all pro-LGBT speech for no other reason than its employees want to
pick on members of that community". I do believe advertising your own forum as the "free speech wing of the free speech party" would be sufficient for a court to conclude that your forum is a common carrier.
- All states have laws against religious discrimination, and many state courts interpreted that to cover Internet businesses such as eHarmony. Would removing posts and comments that promote Roman Catholic beliefs constitute discrimination against Roman Catholics? If so, what about removing posts and comments expressing Judenhass, or praising the 9/11 terrorist attacks? Could that be considered discrimination against militant Islamists? after all militant islamists could argue that expressing Judenhass is part of their faith, and 9/11 is a religious day to them. And, fo course, would applying anti-discrimination laws to social media institutions violate the First Amendment.
- Finally, just because law often steps in when ethics fail, does not mean it steps in competently.

[DaveM]

I would disagree that a marketing slogan makes one a common carrier. And furthermore, can we not see how unsuitable and impossibly entangled it gets trying to equitably decide whether specific expressions are "common" or not? The only truly equitable rule would be "anything goes". In which case, you have no need for a rule in the first place.

Better to segregate out the parts of our "online public square" that are truly common infrastructure, and give those this status, while leaving the content-based parts alone.

[David Nieporent]

It wasn't even a marketing slogan! It was just something that one of their executives said occasionally in speeches. (Even if it were a marketing slogan, it would be nothing more than puffery, like "Flying the friendly skies" was not a legally binding promise that United Airlines staff would be nice.)

[benji]

Wait, are you saying you won't represent me in my case against United?

[David Nieporent]

All states have laws against religious discrimination, and many state courts interpreted that to cover Internet businesses such as eHarmony. Would removing posts and comments that promote Roman Catholic beliefs constitute discrimination against Roman Catholics? If so, what about removing posts and comments expressing Judenhass, or praising the 9/11 terrorist attacks? Could that be considered discrimination against militant Islamists? after all militant islamists could argue that expressing Judenhass is part of their faith, and 9/11 is a religious day to them. And, fo course, would applying anti-discrimination laws to social media institutions violate the First Amendment.

I mean, all you're doing is relitigating the gay wedding cake cases, except doing so with something that's pure speech rather than expressive conduct like designing and baking a cake.

Twitter might not be able to say "No Roman Catholics can have a Twitter account"; that policy may run afoul of anti discrimination law. But it absolutely can say "No speech promoting Roman Catholicism."

[Rossami]

That analysis turns the common carrier definition on its head. Traditional common carriers didn't get that status because they were already indifferent to the content they were being asked to carry - they got saddled with it to ensure that they would be indifferent to it.

[jb]

I’m certainly not. In fact, Musk’s takeover of Twitter proves what people have been saying the whole time: if people don’t like what a particular platform is doing, they can easily move their speech to other places.

Edited to add: oh, and it also proves what people have been saying the whole time which is that it's not possible to have a commercially viable pure free-speech zone and it turns out that content moderation is hard.

[Sarcastr0]

Naw, Twitter is not the end all be all.

Not thrilled to see it burn, but my life will absolutely go on.