Supreme Court Will Consider Cases Challenging Florida and Texas Social Media Laws

The laws require major social media platforms to host content they disapprove of for substantive reasons.

(Rafael Henrique | Dreamstime.com)

Today, the Supreme Court decided to hear Moody v. NetChoice and NetChoice v. Paxton, cases challenging Florida and Texas state laws barring major social media firms from using most types of content moderation, thereby requiring them to host content they disapprove of. Eugene Volokh has additional details on the issues the Court will consider here.

In NetChoice v. Paxton, a 2-1 Fifth Circuit decision upheld the Texas law. Earlier, the 11th Circuit unanimously struck down the main provisions of the Florida law, in a decision written by conservative Trump appointee Judge Kevin Newsom.

In previous posts about these cases, I have explained why the Texas law is a threat to freedom of speech, criticized claims that states can and should treat major social media firms as "common carriers" (including critiquing analogies to phone service providers), and argued that these laws violate the Takings Clause of the Fifth Amendment, as well as the Free Speech Clause of the First Amendment (the takings issue is not before the Court).

Last year, the Supreme Court reinstated the trial court injunction against the Texas law, after it was lifted by the Fifth Circuit. In my view, this action may signal that the Court will rule against Texas (and Florida) on the merits, now that the issue is before them.

For those keeping track, I consistently opposed the Texas and Florida laws both before and after Elon Musk acquired Twitter (now called X). I didn't much like the content moderation policies of the pre-Musk management, and I like Musk's policies even less. But they nonetheless both have a First Amendment right to decide which speech they wish to host, and which they don't. If Musk wants to kick me off Twitter/X because he doesn't like my views, he should be entirely free to do so.

I am also one of the relatively few people who simultaneously support the Fifth Circuit's recent decision to bar the White House and other federal officials from coercing social media firms to take down content they deem "misinformation" and oppose that same courts' decision (with a different panel of judges) upholding the Texas social media law. The First Amendment bars government from both forcing social media firms to take down content the state disapproves of and forcing them to put up content the firms themselves object to. Hopefully, the Supreme Court will see things that way, too.

UPDATE: Although I am a former Fifth Circuit clerk, there are now two cases that the Court agreed to hear today where I hope the Court overrules the Fifth Circuit: NetChoice v. Paxton and Devillier v. Texas. I wrote about the latter case here.

Comments

[Idihax]

Why is it that every single Trump related case ends up before a Jew or a black?

https://www.cnn.com/2023/09/29/politics/jeffrey-clark-fulton-county-removal/index.html

[SRG2]

Because crackers make lousy judges.

[Internet sloth]

Because they know you and are trying to make you angry.

[Internet sloth]

To be perfectly clear, this is sarcasm. As a general rule, you should not hate people you don't know.

[Rev. Arthur L. Kirkland]

Why is it that every single Trump related case ends up before a Jew or a black?

Why does every Volokh Conspiracy comment string head straight to Bigotville, customarily sooner rather than later?

[CountmontyC]

Because sooner or later, mostly sooner, you post.

[Rev. Arthur L. Kirkland]

These are your fans, Prof. Volokh, and the reason strong, mainstream law schools do not want movement conservatives on their faculties.

Don't worry, Idahax and CountmontyC . . . because you are clingers, neither Prof. Volokh nor Prof. Bernstein will aim a discouraging word at you, let alone censor you.

Carry on, clingers.

[Rev. Arthur L. Kirkland]

Great news for Idihax and similar Volokh Conspiracy fans: This white, male, right-wing blog has become so popular that high school students are auditioning to become Volokh Conspirators.

I sense that bringing these fledgling Federalist Society members aboard would be the tipping point that inclines Prof. Kerr to tap out.

[Purple Martin]

They don't. But we're controlling all your news feeds to make it seem that way to you. BWAAHAHAHA....

[Idihax]

If social media sites can't be forced to host writings they disapprove of, then businesses should be allowed to refuse to host people they disapprove of. If I have to serve Shitavius so he can order Cognac drinks and whine about the service, and then leave my waiter a $1 tip, then Facebook should have to follow these laws.

[Drewski]

Businesses don't have to serve people whose speech they disapprove of, you cretin.

[Michael Ejercito]

So a business can exclude people for pro-Catholic speech, is that right?

[F.D. Wolf]

Contra Somin's assertion that the government can't force companies to host speech they don't want to, at least three major Supreme Court cases say otherwise, and, in all three cases, the burden on the companies was substantially greater than the one in this case.

Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) (state can require shopping center to allow petitioners to collect signatures on its property); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (Turner II) (government can require cable system to carry local channels); Rumsfeld v. FAIR, Inc., 547 U.S. 47 (2006) (government can require colleges to allow cable military recruiters on campus).

Somin may believe these cases were wrongly decided, but, nevertheless, they exist. The case comes down to two chief factors: the burden on the companies and the interests of the government. The burden on the companies, allowing the use of infinitesimal amount of their bandwidth, is about as de minimis as it gets. The interest of the state, facilitating the free flow and exchange of ideas, is, in my opinion, compelling.

[NOVA Lawyer]

Pruneyard: Involved a physical space that the owners essentially made a public space, rather than a private space. This is the closest analogy of the cases you cite, but it was distinguished from Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Tornillo is more analogous to the Florida/Texas cases as it involved compelled publishing rather than tolerating the physical presence of people speaking as they would in a public square when you have essentially made your private property a public square.

I believe it is a relevant distinction that Pruneyard involved a physical space and the California Constitution allowed people in such spaces to exercise their rights as they would in any other public space. The Florida/Texas case involves a virtual space expressly about publishing speech. The same free speech concerns are not present when a company is, purportedly, virtually gagging a person (as in the Florida/Texas cases) rather than, as in Pruneyard, actually gagging them. One is about access to a publishing site, the other is literally stopping people from speaking. California’s interest in promoting the free speech rights of people physically permitted in a particular, public-square like place is far more important than the interest of Florida or Texas in promoting free speech rights on media platforms that are virtual. The physical/virtual aspect is important as is the fact that part of the point of social media platforms is speech and their freedom to regulate it is essential to their purpose, whereas shopping centers weren’t in the business of publishing speech so allowing the invited public to act as they would in a physical public space isn’t too onerous a burden.

Turner Broadcasting: It involved content neutral laws that were not meant to force cable companies to carry any particular content and federal government interference was justified due, in significant part, to the “the cable operators’ bottleneck monopoly” which threatened the viability of broadcast television, the preservation of which, the Court held, was an important governmental interest. Importantly, the laws were subject to intermediate scrutiny because they were content neutral. In the current Florida and Texas cases, the state laws don’t involve the same sort “bottleneck monopoly” and are explicitly about requiring providers to carry content that they don’t want to carry. (In Turner, the issue was they didn’t want to carry broadcast not because of objections to the content, but as a competing business. The content wasn’t at issue.)

Rumsfeld: The issue wasn’t about a law requiring anyone to speak against their will or carry certain speech, it was whether the federal government could withhold funds if military recruiters were excluded from campus. The Court held this was regulation of conduct, not compelled speech. In the Florida/Texas cases, there is no question they are being required to use their platform to communicate speech with which they disagree and to which they object to publishing. Case is not really relevant at all.

Florida and Texas are going to lose. They should lose.

[Harvey Mosley]

I may be misremembering but I think Rumsfield held that the universities could be required to host recruiters even if they didn’t accept federal funds.

As for your efforts to differentiate Prunedale I disagree that requiring a business to allow physical speakers is somehow less of a burden than allowing them in a virtual space. Bandwidth is basically unlimited and nothing would prevent a company from offering a “mute user” feature while allowing unwanted physical speakers can possibly cause customers a business wants from coming to that business.

[Michael Ejercito]

The Solomon Amendment did not appear to go that far as to apply to universities which refused even a cent of federal funding.

[NOVA Lawyer]

Harvey,

You are rigtht, the Court went further than holding that conditioning receipt of federal funds on providing access was okay. The Court held:

Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.

The Rumsfeld Court distinguished compelled speech cases, however:

We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message. See Hurley, 515 U. S. 557, 566 (1995) (state law cannot require a parade to include a group whose message the parade’s organizer does not wish to send); Pacific Gas, 475 U. S. 1, 20–21 (1986) (plurality opinion); accord, id., at 25 (Marshall, J., concurring in judgment) (state agency cannot require a utility company to include a third-party newsletter in its billing envelope); Tornillo, 418 U. S. 241, 258 (1974) (right-of-reply statute violates editors’ right to determine the content of their newspapers)…

The compelled-speech violation in each of our prior cases, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate…..The compelled-speech violations in Tornillo and Pacific Gas also resulted from interference with a speaker’s desired message.

But you are right, the Court did hold that the statute could directly require access for military recruiters rather than simply conditioning acceptance of federal funds on access. Thank you for correcting me!

[NOVA Lawyer]

Harvey,

On Pruneyard, we disagree. It’s not only about the burden. Plus, Pruneyard didn’t say that, for instance, California could require Best Buy to allow shoppers to engage in political speech and pamphleteer. Rather, an important part of the case was that a shopping mall is much like and serves a similar function to a public park or public sidewalk.

A social media website, however, is less like that physical space and more like a newspaper or billboard. It was the nature of the place as a physical space that played a role in the Court’s decision. But, you are right, there are aspects of Pruneyard that could be extended to this case. It’s definitely an open question how it will go. The Court could analogize it more like Tornillo or more like Pruneyard. Neither is an exact fit.

[David Nieporent]

As for your efforts to differentiate Prunedale I disagree that requiring a business to allow physical speakers is somehow less of a burden than allowing them in a virtual space.

YM Pruneyard, and the shopping center never argued that it was a burden. Indeed, at least some justices suggested the decision might have come out differently if they had.

[Ben_]

We know how the 3 Democrat justices will rule already: Google and Facebook can ignore discrimination laws when their actions benefit Democrats.

It’s a lot less obvious what the other 6 will say.

[Idihax]

They'll also rule that the government has an interest in making sure that sexual deviants can penetrate puppies on national TV.

[Nige]

Keep dreaming that dream.

[Life of Brian]

Although I am former Fifth Circuit clerk, there are now two cases that the Court agreed to hear today where I hope the Court overrules the Fifth Circuit

I should certainly hope that this sort of thing would go without saying. It's more than a bit sad that the human race has increasingly devolved into mindlessly cheering for one's team that he felt like he had to say it.

[Sarcastr0]

There's an entire post about his thinking, LoB. It's hardly mindless.

OTOH, you seem to be mindlessly crying something is partisan without reading it's content.

[Life of Brian]

OTOH, you seem to be mindlessly crying something is partisan without reading it’s content.

Do you bother reading (and, as a stretch goal, thinking about) what I write at all before whipping out your shoot-from-the-hip responses? Maybe try it again, slowly and deliberately, moving your lips if that's what it takes.

[Jonathan Affleck]

This technological overview contains a 5 paragraph long technological overview that explains -- I believe -- everything a judge needs to know.

Technological Overview

47 U.S. Code § 230 states that “the term ‘Internet’ means the international computer network of both Federal and non-Federal interoperable packet switched data networks.” Non-Federal interoperable packet switched data networks include state and private interoperable packet switched data networks. Government packet switched data networks consist of Federal and state packet switched data networks. End user computing devices, which are within and attached to the Internet, can be government or private computing devices. Packet data traffic flows between web or cloud servers and end user computing devices. Government and private web or cloud servers download programs to an end user computing device for the purpose of transporting messages within the packet data traffic data to and from web or cloud servers to end user computing devices. Government and private message traffic is mixed and entwined within mixed, interconnected, and entwined government and private technology.

47 U.S. Code § 230(a) declares that in 1996 the Internet had become “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” to the “benefit of all Americans.” This declaration states that the 1996 Internet is a government-designated public forum. By 1996 the government had spent a tremendous amount of public money in the development of the Internet. 47 U.S. Code § 230(b) declares (a) that continuation of this development of the Internet is a policy of the US government and (b) that it is another policy of the US government to “maximize user control over what information is received by individuals, families, and schools who use the Internet.” The US government continues to spend tremendous amount of public money on government networks within the Internet, on government technology within the Internet, and on government end user computing devices within the Internet. Even though the US government has subcontracted a small amount of the management of the Internet to private entities, which the US government often funds and in which the US government often participates, a substantial part maybe most of the US Internet belongs to the US government or is funded by the US government. The US Internet remains a government-designated public forum until the US government repeals 47 U.S. Code § 230.

A 1996 Interactive Computer Service (ICS) like AOL, Prodigy, or Compuserve created its own public forum inside and outside the government-designated public forum of the Internet by means of common carriage of messages from a user of the ICS to another user of the ICS. Such a 1996 ICS also “[included] specifically a service or system that [provided] access to the Internet.” A 1996 ICS also provided service that was not common carriage. While a 2023 social medium platform creates its own public forum within the government-designated public forum of the Internet by means of common carriage of messages from a user of the social medium platform to another user of the social medium platform, a 2023 social medium platform does not provide access to the Internet. Because a 2023 social medium platform does not “include specifically a service or system that provides access to the Internet,” a 2023 social medium platform does not meet the definition of an ICS. A 2023 social medium platform provides an email service that has a niftier user interface than an ordinary Internet email service.[1] Like an ordinary Internet email service, a 2023 social medium platform has bailment of a user’s message in a backend server. Such bailment is not speech of either the Internet mail service or the 2023 social medium platform, but the bailment is valuable to the 2023 social medium platform because the user’s message can be used to attract the eyes of another user of the 2023 social medium platform to a web page of the 2023 social medium platform. “Eyes-on-a-page” is a valuable item to the 2023 social medium platform. A 2023 social medium transports messages throughout the Internet, but little of the Internet belongs to a 2023 social medium platform. Most of the US Internet belongs to the government and to other private entities or individuals.

A state becomes inextricably entwined with a 2023 social medium platform when it uses the public forum of the social medium platform to create a state public forum, to make state announcements like job postings, or to discuss state legal procedures or rules. The 2023 social medium platform transmits its messages in state networks and runs its software on state end user computing devices. The 2023 social medium platform provides a substitute for a state web or cloud site. Bailment of the state’s messages in a backend server is used to attract “eyes-on-a-page” to a web page of the 2023 social medium platform. Such involvement of the state and the 2023 social medium platform in each other’s business and activities is much more than the grant of a liquor license and represents inextricable entwinement to the point of symbiosis.

The state public forum exists within the public forum of the 2023 social medium platform. The 2023 social medium platform’s public forum exists within the government-designated public forum of the Internet. Not only is the Internet a government-designated public forum, but the Internet also belongs to the class of “Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation.” The preceding clause does not require the Internet to be a place of public accommodation but only requires the Internet to be like or as a place of public accommodation. The same logic desegregated a public drinking fountain, which is an establishment supported by state action as a place of public accommodation for drinking water. A public drinking fountain is a device (a valve on a water pipe) and not a place that one can enter. A 2023 social medium platform is located within the Internet because it is located by connection and by IP address within the premises of the Internet. Premises includes grounds and appurtenances, which include wiring.

1 An ordinary Internet email service like Gmail and a 2023 social medium platform both meet the traditional definition of a telegraph service: a service that transmits a message electrically by wire or by wireless means.

[David Nieporent]

It was wrong when you posted it in the other thread; you didn't need to cut and paste it into this one, too.

[Jonathan Affleck]

Neither the FCC nor state trial courts ever rejected my exposition of the facts when precisely the same issues came up in the context either of the circuit-switched telephone network or of the message-switched telegraph and telex networks. From the standpoint of law, it is hard to identify any reason why circuit-switched, message-switched, and packet-switched networks should be treated differently.

[Phanatic]

No, you don't understand, it's entirely okay for telephone companies to be turned into common carriers and required to carry speech whose content they disagree with, but it's an unconstitutional Taking for that to be done with internet companies because reasons.

[David Nieporent]

No, you don’t understand, it’s entirely okay for telephone companies to be turned into common carriers and required to carry speech whose content they disagree with, but it’s an unconstitutional Taking for that to be done with internet companies because reasons.

Setting aside all the many substantive differences between a telephone company and a social media company, can you point to a single case where a telephone company raised a constitutional objection (takings, first amendment, other) to being declared a common carrier?

[Jonathan Affleck]

At least up to 1901, the common carrier status of a telephone company was not unchallenged. See State v. Telephone Co., 61 S.C. 83, 39 S.E. 257 (S.C. 1901).

[David Nieporent]

So I'll take that as a no, you can't point to a single case where a telephone company raised a constitutional objection (takings, first amendment, other) to being declared a common carrier.

[Jonathan Affleck]

Determination of possible status of providing common carriage has usually been considered a factual and not a Constitutional question.

Is carriage offered to the public for a fee on uniform terms?

[David Nieporent]

Determination of possible status of providing common carriage has usually been considered a factual and not a Constitutional question

The question wasn't "determination of possible status." The issue is whether such a determination would be constitutional if made.

Nobody suggests that a state cannot pass a law defining a common carrier in such a way that Twitter would be included — just that a state may not do so, because it would violate Twitter's constitutional rights.

[Jonathan Affleck]

A few states statutorily define an entity to be a common carrier. Massachusetts and other states factually determine whether an entity provides a service that meets the common law definition of common carriage.

[Jonathan Affleck]

One can argue that an American has a Ninth Amendment right to non-discriminatory common carriage -- just as an American has a Ninth Amendment right to sue a publisher, distributor, or speaker for libel. Where else are these rights found in the US Constitution? What allows a libel law to override the First Amendment?

[Jonathan Affleck]

During the 19th century there were also legal controversies that addressed whether a telegraph system had bailment of a message. By the beginning of the 20th century, it was universally accepted that a telegraph system had bailment of a message.

Voice common carriage by an analog voice telephone network is probably the first example of common carriage, (a) in which a person is not the subject of carriage and (b) whose carrier does not have bailment of property.

[NOVA Lawyer]

"precisely the same issues came up"

No, they are not precisely the same issues.

And Gmail is not the same as a social media platform and vice versa. The analogy is closer for email. Of course, I'm not sure there is any sort of content moderation with email and I've not heard anyone complaint about it. Why? Because email is different from social media platforms. They do different things in different ways.

The reasons that social media platforms almost all have at least some sort of moderation of content whereas email providers don't are the very reasons why your analogy to telegrams and telephones and email doesn't work.

[Jonathan Affleck]

Common carriage law applies to many different services. Common carriage law applies when a carrier holds out carriage to the public for a fee under standard terms.

The core service of both an Internet email service and also a social medium platform is the carriage of a message from a user to another user. The whizzier UI of a social medium platform makes no difference. Both an Internet email service and also a social medium platform provide common carriage of a message.

I was involved in the Dial-A-Porn cases. The controversies of the Dial-A-Porn cases are practically identical to those that are associated with a social medium platform.

[David Nieporent]

Common carriage law applies when a carrier holds out carriage to the public for a fee under standard terms.

And social media companies do not satisfy a single one of those elements.

[NOVA Lawyer]

I was involved in the Dial-A-Porn cases. The controversies of the Dial-A-Porn cases are practically identical to those that are associated with a social medium platform.

This is a tell you have no idea what you are talking about. The issues in those cases, and there were many with different aspects, all revolved around whether the federal government could prohibit private entities from transmitting indecent and/or obscene material over telephone lines. The most notorious, and from what I can tell all of them, had nothing to do with any government-compelled delivery and promotion of public messages, but instead all involved some aspect of federal regulation of wholly private messages and laws/regulations ensuring that indecent messages are not sent to minors who are constitutionally forbidden by law from receiving them.

The fact that you seem to think the Dial-a-Porn cases are relevant to the Florida/Texas social media cases, much less directly on point, says nothing good about your analysis of the Florida/Texas cases.

[Jonathan Affleck]

I explained the relationship of a telephone company to the Dial-a-Porn content that was hosted in the telephone network, which was privately owned by the telephone company. In contrast, a social medium platform owns a minuscule part of the Internet.

I pointed out that the phone company had bailment of the narratives, which represented the speech of a Dial-a-Porn service and not the speech of the telephone company. A Dial-a-Porn service paid for warehousing.

[NOVA Lawyer]

To whom did you explain these things?

And it's entirely irrelevant that "a social medium platform owns a minuscule part of the Internet" other than it leaves open a multitude of possibilities for competitors which cuts against treating them as common carriers.

To whom did you "point out" these things?

And the fact that "the phone company had bailment of the narratives, which represented the speech of a Dial-a-Porn service and not the speech of the telephone company" is irrelevant here because the social media companies' point is that, unlike telegraph, telephone, and email, they aren't mere carriers of private messages. You're basically pointing out how telephone companies are different from social media companies while apparently thinking you are showing how they are the same.

Social media companies are providing an entertainment service and curating content to create a particular environment (to include recommending some content and disfavoring other content, which basically is a huge part of their business model). That's not what telegraph companies, phone companies, or email providers do. It's never been what they do.

[Jonathan Affleck]

MAS/MANS was an experiment in providing entertainment content via the phone system. It was quite successful. Just like a 2023 social medium platform, AT&T was not a creator of the entertainment content.

§ 230 says nothing about a license for discriminatory curation while § 202 states the following.

(a)Charges, services, etc.
It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

The above passage refers to common carrier and not to telecommunications carrier.

[NOVA Lawyer]

§ 230 says nothing about a license for discriminatory curation

Seriously? It literally says exactly that:

No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected...

Now that is not a license to discriminate based on the identity of the user/poster of material, but it is quite explicitly a license to discriminate against material based on the subjective determination of the interactive computer service provider.

The above passage refers to common carrier and not to telecommunications carrier.

Dude. 47 U.S.C. § 153(11) defines common carrier:

The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

And case law has definitively established that email providers are not "common carriers" within this definition. See Republican Nat. Comm. v. Google Inc., 2:22-cv-01904-DJC-JBP (E.D. Cal. Aug 24, 2023) (""Plaintiff's first and sixth claims center on applying common carrier requirements to Google's Gmail service. While the RNC concedes that its claim under the Federal Telecommunications Act is precluded by binding precedent...").

If Gmail is not a common carrier under federal law, you have a really tough burden to show that Facebook, X, Instagram, and the like are.

[Jonathan Affleck]

The US District Court and the RNC complaint refer to § 153 (51) Telecommunications carrier and not to § 153 (11) Common carrier. The FCC only regulates § 153 (51) and not § 153 (11) according to binding precedent, but this binding precedent means that Gmail is not a telecommunications carrier. The binding precedent hardly means that Gmail is not a Common carrier. In fact, the only federal precedent on § 153 (11) asserts that an email service is a common carriage service.

[Jonathan Affleck]

I was an architect of the MAS/MANS. I was deposed during discovery. From a factual standpoint, I explained how the architects viewed content that was stored within the network. AT&T had first amendment rights, but none of the speech carried by the network or content stored within the network was considered to be speech of AT&T.

A social medium platform is like AT&T a common carrier. Obviously AT&T is primarily a common carrier of voice while a social medium platform is a common carrier of messages.

It is errant nonsense for anyone to claim that content stored in a backend server of a social medium platform is speech of a social medium platform. A social medium platform is the bailee not the speaker of this content.

If a social medium platform curates or moderates, it violates federal and state common carriage law and violates the public constitutional right (9th Amendment) to non-discriminatory common carriage.

§ 230 did nothing more than extend the common carrier rules of messages unfit to carry to the non-common carriage services of 1996 ICS like AOL, Compuserve, or Prodigy.

Because a 2023 social medium platform is purely a common carrier and is not an ICS according to the definition in § 230, § 230 (c) should be considered irrelevant to any litigation that pertains to a 2023 social medium platform.

[NOVA Lawyer]

"A social medium platform is like AT&T a common carrier."

That's the very thing you have to prove for your argument to make sense and I've shown elsewhere why the weight of authority is that, in fact, a social medium platform is not anything like AT&T and is not a common carrier under current federal law.

"§ 230 did nothing more than extend the common carrier rules of messages unfit to carry to the non-common carriage services of 1996 ICS like AOL, Compuserve, or Prodigy."

That is not at all what it did. Not even close.

"Because a 2023 social medium platform is purely a common carrier and is not an ICS according to the definition in § 230."

That is utter nonsense. A social media platform is the quintessential ICS under § 230.

[NOVA Lawyer]

Mr. Affleck,

Read this and then go fix your argument:

The Federal Telecommunications Act does not treat email providers such as Google as common carriers for similar reasons. The Federal Telecommunications Act distinguishes between “telecommunications service" providers and “information service" providers, affording common carrier status only to the former. United States Telecom Ass'n[], 825 F.3d 674, 691 (D.D.C. 2016). A telecommunications service provider is one which provides a “basic" service, merely transporting information, “without computer processing or storage of the message." []Brand X Internet Servs., 545 U.S. 967, 988 (2005)... The FCC has applied this label to services like a digital subscriber line (“DSL") that carries information via phone lines. United States Telecom Ass'n, 825 F.3d at 691-92. In contrast, an information service offers a “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” 47 U.S.C. § 153(24). In Brand X, the Supreme Court agreed with the [FCC] that an internet service provider which provides a suite of services including access to the internet, email, and web pages - services which necessarily require further processing of information - provided more than a “transparent" transmission of information and was fairly excluded from common carrier obligations. 545 U.S. at 993.

Republican Nat'l Comm. v. Google Inc., 2:22-cv-01904-DJC-JBP (E.D. Cal. Aug 24, 2023).

[Jonathan Affleck]

If Congress had meant for every Internet service to be an ICS service, it could have written § 230 to say so.

Instead, it says that an ICS "[includes] specifically a service or system that provides access to the Internet."

A 2023 ISP "[includes] specifically a service or system that provides access to the Internet."

A 2023 social medium platform does not "[include] specifically a service or system that provides access to the Internet."

[Jonathan Affleck]

The current version of the Telecommunications Act creates two categories: (a) common carrier and (b) a telecommunications carrier.

A telecommunications carrier is a common carrier, but a common carrier does not have to be a telecommunications carrier.

§ 153 (11) Common carrier
The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

§ 202 refers to refers to common carrier not to telecommunications carrier.

[David Nieporent]

It is errant nonsense for anyone to claim that content stored in a backend server of a social medium platform is speech of a social medium platform. A social medium platform is the bailee not the speaker of this content.

1) The term is "arrant" nonsense, not "errant" nonsense.
2) Again, not a bailee at all, but the statement that storing messages is not speech is correct. But publishing the messages — and, more importantly, choosing which messages to publish — is the speech of the platform.

If a social medium platform curates or moderates, it violates federal and state common carriage law

No. Federal and state common carriage law — if they applied at all, which they don't — would be superseded by both the 1st amendment and § 230.

and violates the public constitutional right (9th Amendment) to non-discriminatory common carriage.

This is beyond gibberish. The 9th amendment does not govern the actions of private businesses.

§ 230 did nothing more than extend the common carrier rules of messages unfit to carry to the non-common carriage services of 1996 ICS like AOL, Compuserve, or Prodigy.

That is literally exactly the opposite of what § 230 did.

Because a 2023 social medium platform is purely a common carrier and is not an ICS according to the definition in § 230, § 230 (c) should be considered irrelevant to any litigation that pertains to a 2023 social medium platform.

And yet, every court and lawyer says you're wrong about your understanding of § 230. Stomping your feet and pretending otherwise is no different than the people who claim that they don't have to pay income taxes and that flags with gold fringes mean the courts don't have jurisdiction over them.

[David Nieporent]

If Congress had meant for every Internet service to be an ICS service, it could have written § 230 to say so.

It did. Explicitly.

Instead, it says that an ICS “[includes] specifically a service or system that provides access to the Internet.”

No, it does not. You had to use brackets because you rewrote the words.

A 2023 social medium platform does not “[include] specifically a service or system that provides access to the Internet.”

That's okay, because a "2023 social medium platform" is an "information service, system, or access software provider that provides or enables computer access by multiple users to a computer server," and any service that meets that definition is an ICS. (Including any service that provides access to the Internet.)

[NOVA Lawyer]

A social media platform is undeniably “a provider or user of an interactive computer service.” Section 230 applies to them.

And, in any case, you still have to deal with the fact that, under federal law, email services like Gmail and ISPs themselves are not common carriers. Email providers are much more analogous to telegraph and telephone services than are social media platforms. If email providers aren’t common carriers, social media platforms definitely are not.

You really should read Republican Nat. Comm. v. Google Inc., 2:22-cv-01904-DJC-JBP (E.D. Cal. Aug 24, 2023), and then fix your argument to take account of the fact that Gmail and social media platforms “do not “carry’ messages; they receive and store messages, and make them available for retrieval by the user after the message has been shuttled through the” internet. Republican Nat’l Comm. v. Google Inc., 2:22-cv-01904-DJC-JBP (E.D. Cal. Aug 24, 2023).

[Jonathan Affleck]

1996 Prodigy, Compuserve, and AOL are the quintessential ICSs. § 230 (c) was written with these services in mind. They were access software providers. Their access software CD ROMs became litter that literally covered streets and sidewalks during the 90s.

The 1996 services all (unlike a 1996 social medium platform) provided access to the Internet. The 1996 ICSs had practically no similarity or overlap with a 2023 social medium platform.

[Jonathan Affleck]

The Trial Court refers to § 153 (51) Telecommunications carrier and not to § 153 (11) Common carrier. If a common carrier "in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy" can only be telecommunications carrier, § 153 (11) should have been removed from § 153. The FCC only regulates § 153 (51) and not § 153 (11) according to binding precedent, but this binding precedent only means that Gmail is not a telecommunications carrier. The binding precedent hardly means that Gmail is not a common carrier. In fact, the only federal precedent on § 153 (11) asserts that an email service (USPS ECOM) is a common carriage service. ECOM was a weird service by today's standards. The FCC issued a never challenged ruling that asserted ECOM was a common carriage service.

[NOVA Lawyer]

"The 1996 ICSs had practically no similarity or overlap with a 2023 social medium platform."

To the extent this is true at all, the dissimilarities all make social media platforms less like common carriers than the entities you have dubbed "1996 ICSs". If the so-called "1996 ICSs" are not common carriers, then so-called "2023 social medium [sic] platforms" are absolutely not common carriers.

[Jonathan Affleck]

If a 2023 ISP is always a common carrier according to § 153 (11) [Common carrier] even if from administration to administration the FCC changes an ISP's status under § 153 (51) [Telecommunications carrier], why does Nova Lawyer believe that a 1996 ICS like AOL was not a common carrier? In 1996 AOL is [historical present] an "information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet..."

[Zarniwoop]

I fail to understand why you have such a hard-on for § 230.

Did it seduce your wife, shoot your dog, and steal your pickup truck?

[Stephen Lathrop]

Yet another discussion disfigured by refusal among internet utopians to consider what if any legal difference there might be between a private publisher which edits content prior to publication, and another private publisher which so-called, "moderates," content post-publication.

Particularly mysterious is the phenomenon of would-be contributors who are more provoked and angered by moderation than by private editing. With the former practice, publication sometimes happens because no one at the publishing business sees unwanted content in advance—which is a notably better expressive outcome for the utopian than a more thoroughgoing pre-publication review might deliver.

But it is, "moderation," which evokes the, "CENSORSHIP!" outcry. With a few unreflective exceptions among especially-committed libertarians, no one thinks private editing prior to publication is censorship. Almost everyone gets that if you submit a would-be news account to the NYT, and their editors decide not to publish it, you have not been censored.

But what difference does that make? Internet utopians demand a personal power to publish anonymously, world-wide, at no cost, whatever they want to say, regardless of defamation or intent to defraud, with no editing prior to publication, and no take-downs afterward.

That is a publishing power greater than anyone in history has ever enjoyed, and greater than anyone will ever be able to achieve. To enable it even temporarily would both dismantle the practical means necessary to accomplish publication, and provoke massive government intervention to thwart expressive freedom—facts of which internet utopians remain stubbornly heedless—at least among the better-motivated utopians who are not already trying to get government to thwart expressive publications the utopians disapprove.

[Jonathan Affleck]

Internet dystopians want to give private corporations unlimited power to control discourse and to profit via common carriage of messages without the legal obligations of common carriage in a network, which does not belong to the private corporations.

Internet dystopians seem to want to legalize acts that seem a lot like larceny.

[JasonT20]

Facebook, Twitter, Instagram, YouTube, etc. are hosting user generated content on servers that they control (through contracts if they don't operate the server farms directly). But they are not gatekeepers to the internet itself. Common carrier laws originated at at time when that technology was operated in largely monopoly fashion. If someone wanted to place a phone call, but the phone company didn't like what that person would say on the phone, then there was no alternative for that method of communication for them to turn to. Today, phone services have competition (but broadband ISPs often don't) but the legal status remained the same and everyone agreed that it should be so. That is because all a phone company or ISP does is transmit data. The messages being sent carry no implication that the provider supports those messages in substance. In fact, no one receiving the message has any way to know what company provided the sender with access.

None of that is true with social media.

[Jonathan Affleck]

The origin of common carriage laws has no connection to monopoly.

Here's Blackstone's analysis.

"There is also in law always an implied contract with a common
innkeeper, to secure his guest's goods in his inn; with a common
carrier or bargemaster, to be answerable for the goods he carries;
with a common farrier, that he shoes a horse well, without laming
him; with a common taylor, or other workman, that he performs
his business in a workmanlike manner; in which if they fail, an
action on the case lies to recover damages for such breach of their
general undertaking. But if I employ a person to transact any
of these concerns, whose common profession and business it is
not, the law implies no such general undertaking; but, in order
to charge him with damages, a special agreement is required.
Also, if an innkeeper, or other victualler, hangs out a sign and
offers his house for travellers, it is an implied engagement to
entertain all persons who travel that way; and upon this uni-
versal asstumpsit an action on the case will lie against him for
damages, if he without good reason refuses to admit a traveller."

[NOVA Lawyer]

No one is talking about innkeepers. JasonT20 was clearly referring to the application of common carrier laws to telecommunications companies (telegraph and telephone). The “at [a] time when that technology was operated in largely monopoly fashion” should have tipped you off. He wasn’t talking about the technology of inn keeping, he was talking about telegrams and telephones.

And he is right. Western Union’s monopoly on telegram communications was a significant motivating factor in the adoption of the Manns-Elkin Act of 1910.

See here for a fuller discussion: https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=2462&context=faculty_scholarship#:~:text=In%20the%20Mann%2DElkins%20Act,lines)%20to%20be%20common%20carriers.

[Jonathan Affleck]

State court decisions and laws applying common carriage rules to a telegraph system go back to 1848. The federal government was following the lead of states.

[NOVA Lawyer]

Citation please.

As late as 1871, the New York Court of Appeals said there were no cases on the subject and noted it was debatable:

It is not very important to determine whether telegraph companies are common carriers or not, because I find no decision, entitled to any weight as authority, which holds that the common-law liability of common carriers attaches to them. They may in one sense be called common carriers, as they are engaged in a public employment, and are bound to transmit, for all persons, messages delivered to them for that purpose. (Sherman Redfield on Neg., 606.)

https://casetext.com/case/breese-et-al-v-us-telegraph-co

And these suggest you are quite wrong:

“This telegraph company is not a common carrier, but a bailee performing, through its agents, a work for its employer, according to certain rules and regulations, which, under the law, it has a right to make, for its government.” Birney v. New York & W. Printing Tel. Co., 18 Md. 341 (Md. 1862)

“Whether we regard telegraph companies as common carriers or as bailees, we see no reason why they may not specially limit their liabilities, subject to the qualification, however, that they will be protected from the consequences of gross negligence.” Wann v. Western Union Tel. Co., 37 Mo. 472 (Mo. 1866) (also containing multiple citations to cases that found telegraph companies not to be common carriers).

Argument of Counsel in Wann:

“The only adjudicated case directly holding telegraph companies liable as common carriers, it is believed, is the case of Parks v. Alta Cal. Tel. Co. (13 Cal. R. 422.) This case was decided in 1859, and has no reference to previous adjudications–nor does it seem to be well considered. No reference appears to have been made to the Cal. statute on the subject, either by counsel or court.”

In short, it doesn’t appear to have been settled to treat telegraph companies as common carriers until Western Union had a monopoly. Your objection to JasonT20’s comment is without merit.

[Jonathan Affleck]

It took some time for the US legal system to acknowledge that a telegraph company is a common carrier of messages. We are seeing the same process sort itself out today just as it took place in the 19th century. This process is a feature of the US legal system.

The Wow! Factor may be interfering with today’s legal reasoning just as the Wow! Factor influenced early telegraph decisions of many Courts. “In two early cases, Parks v. Alta Cal. Tel. Co., 13 Cal. 422 (1859), and Mac Andrew v. The Electric Co., 17 C. B. (Eng.) 3 (1855), they were held to be common carriers; but in other early cases the courts, when they considered the nature and power of electricity, thought it so strange, wonderful and incomprehensible, that no ordinary human care or skill could possibly suffice to control it perfectly, and, deeming it therefore unjust to hold telegraph companies bound by the strict rules which govern common carriers, sought out reasons for making a distinction between these new carriers of thought and the old carriers of merchandise.” See Benjamin F. Rex, “Liability of Telegraph Companies for Fraud, Accident, Delay and Mistakes in the Transmission and Delivery of Messages,” The American Law Register, May, 1884, Vol. 32, No. 5, New Series Volume 23 (May, 1884), p. 282. By 1869 the Wow! Factor had dissipated.

[NOVA Lawyer]

That's one way to interpret history. Another is that by 1866, Western Union had bought out all of its chief competitors and had a monopoly and that changed the calculus because there was only one carrier for that type of message. And, frankly, that seems more compelling.

But there's also the factor that telegraphs, like phone calls and email and DMs, are person-to-person and no one other than the parties to the conversation have any real interest in the content.

Social media, however, is in most ways more analogous to newspapers and cable television in that the content published/broadcast is for broad public consumption and, so, the publisher/broadcaster has an interest in the messages being broadcast, including whether they are consistent with the corporation image/environment they want to create.

And the argument from Western Union's monopoly power, which changed views on whether telegraph companies were common carriers, is an argument you see now in the social media context. But I think this time, so far, it is a losing argument because you have Instagram and Facebook, but also X and TikTok and Snapchat and Telegram and various other social media platforms such that no one has a monopoly at this point.

It's not about any "wow" factor, it's about how the businesses operate, including whether they are the sort of business that is so essential they should serve all who come, and whether they exercise monopolistic power.

[Jonathan Affleck]

The first law that required non-discriminatory carriage of telegraph messages was the New York Telegraph Act of 1848.

The New York Telegraph Act dealt with the possible monopoly problem by making it easy to set up a telegraph company and by compelling a telegraph company to treat a telegraph company like any other customer for telegraph service.

[NOVA Lawyer]

Irrelevant.

As you've pointed out, they weren't considered common carriers until Western Union had a monopoly. It was precisely because the attempts to deal with the monopoly problem had failed that legislatures started defining telegraph companies as common carriers.

[Jonathan Affleck]

Even though Internet dystopians try to claim the issue is monopoly, the issue has always been discrimination. Common carriage law is the root and origin of anti-discrimination law. In a town, a restaurant, which refuses to serve blacks, is an offense even if there are 9 other restaurants, which will serve blacks.

Internet dystopians try to use the US Internet, which is substantially maybe mostly public funded, to strip Americans of their Constitutional rights and of their protection against discrimination.

The issue of WU monopoly seems to have come to the fore in 1881 after the completion of the purchase of Atlantic and Pacific Telegraph Company (A&P).

The Atlantic and Pacific Telegraph Company (A&P) was an American communications company that operated in the 19th century. The Maine Legislature chartered the company in 1854. The company’s stated objective was to build a telegraph system extending from the East Coast to the West Coast.[1]

In 1869 A&P leased telegraph lines from the Union Pacific Railroad (UP) and the Central Pacific Railroad, in exchange for shares of stock. Subsequently, the UP attempted to retake control of the lines in order to lease them to an additional, competing telegraph company, the American Union Telegraph Company. In 1880 the A&P obtained a court injunction to prevent the UP action.[2]

Through several complex transactions, which included patent negotiations with inventor Thomas Edison, financier Jay Gould acquired sufficient shares of A&P stock to obtain control of the company by 1875.[3]: 196–201  (During this time, Gould was also increasing his ownership in the UP, which he ended up controlling by 1880.) Gould’s takeover was contested in litigation; meanwhile, Gould initiated a rate war with competing telegraph companies, most notably Western Union, the largest company in the industry.[4] By 1878, Gould had sold the A&P to Western Union at a handsome profit.[3]: 204–205  [5]

During the 1870s when an increasing number of states were rapidly finding that a telegraph company provides common carriage, there was a price war among telegraph companies.

[Jonathan Affleck]

The California Civil Code explicitly addresses a common carrier of messages.

ARTICLE 4. Common Carriers of Messages [2207 – 2209] (enacted 1872)

2207. A carrier of messages by telegraph must, if it is practicable, transmit every such message immediately upon its receipt. But if this is not practicable, and several messages accumulate upon his hands, he must transmit them in the following order:
1. Messages from public agents of the United States or of this State, on public business;
2. Messages intended in good faith for immediate publication in newspapers, and not for any secret use;
3. Messages giving information relating to the sickness or death of any person;
4. Other messages in the order in which they were received.

2208. A common carrier of messages, otherwise than by telegraph, must transmit messages in the order in which he receives them, except messages from agents of the United States or of this State, on public business, to which he must always give priority. But he may fix upon certain times for the simultaneous transmission of messages previously received.

2209. Every person whose message is refused or postponed, contrary to the provisions of this Chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto.

[NOVA Lawyer]

So not 1848 like you said, but 1872 when Western Union had a monopoly. Thanks for proving your initial criticism of JasonT20 was wrong.

[Jonathan Affleck]

The first law that required non-discriminatory carriage of telegraph messages was the New York Telegraph Act of 1848.

[Jonathan Affleck]

Wu's article is extremely ignorant and should be ignored because he seems to believe the application of the law of common carriage of messages starts with the federal government. It is a POV that is irrelevant to state laws like those of Florida and Texas.

The Federal government has never had much interest and probably does not have the ability to regulate common carriage of a message at the end user transaction. Such regulation was always left to the states.

[NOVA Lawyer]

"The Federal government has never had much interest and probably does not have the ability to regulate common carriage of a message at the end user transaction. Such regulation was always left to the states."

Lol. You mean didn't, in the telecommunications field, until 1910, when it basically took over the entire field of common carrier law as applied to telecommunications companies. See, e.g., 47 U.S.C. 201 et seq.

If your hook is this: "a message at the end user transaction", it's not even clear what you mean by that. But 47 U.S.C. 201 et seq. clearly deals with federal requirements to not discriminate against end users and, in certain cases, to "protect" end users from certain messages.

[Jonathan Affleck]

State and federal regulation continued to coexist. 47 U.S. Code § 201 is explicit in referring to interstate commerce.

(a)It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor; and, in accordance with the orders of the Commission, in cases where the Commission, after opportunity for hearing, finds such action necessary or desirable in the public interest, to establish physical connections with other carriers, to establish through routes and charges applicable thereto and the divisions of such charges, and to establish and provide facilities and regulations for operating such through routes.

The local loop was almost invariably under the regulatory authority of a state commission because the federal government does not have the power to regulate intrastate commerce. Massachusetts is typical.

Here is the basic 1869 Massachusetts common carriage statute.

Section 1: Duties; jurisdiction to enforce
Every common carrier of merchandise or other property shall receive, transport and forward all property offered for such purposes by other such carriers as promptly, faithfully and impartially, at as low rates of charge, and in a manner and on terms and conditions as favorable to the carrier offering such property, as he on the same day and at the same place receives, forwards and transports, in the ordinary course of business, property of a like description offered by persons other than such carriers. Such carrier shall not discriminate against any particular person or subject him to any undue or unreasonable prejudice or disadvantage. The supreme judicial or superior court shall have jurisdiction in equity to enforce this section.

Here is the state level division of authority.

Section 10: Enforcement of chapter by department of telecommunications and cable and department of public utilities
The department of telecommunications and cable shall enforce this chapter to the extent that it relates to telecommunications. The department of public utilities shall enforce all other provisions.

If the federal government declines to regulate an end user transaction, a state government has always had the authority to regulate the end user transaction according to the 10th Amendment.

The Texas and Florida statutes are botched efforts to regulate an end user transaction and to restore sanity to common carriage of messages.

The Massachusetts approach is saner and simpler.

Section 2: Penalty
Every such carrier who wilfully neglects or refuses to comply with the preceding section shall forfeit not less than fifty nor more than five hundred dollars, to the person offering the property for transportation.

[David Nieporent]

The local loop was almost invariably under the regulatory authority of a state commission because the federal government does not have the power to regulate intrastate commerce.

Wrong, of course. See, e.g., Wickard v. Filburn and Gonzales v. Raich.

[Jonathan Affleck]

The FCC decided that local loop regulation did not have enough affect on interstate commerce for the dormant commerce clause to be invoked. The FCC decided it was mostly interested in tariffing and settlements among telephone networks.

[Jonathan Affleck]

Blackstone refers to a class of professions. A common carrier is only one example, which he includes in the list. These professions all had requirements of non-discrimination in British law.

[David Nieporent]

Lucky we killed lots of redcoats so that we wouldn't be governed by British law, then.

[Jonathan Affleck]

David Nieporent appears never to have read the 9th Amendment.

The right to non-discriminatory common carriage (like the right to sue for libel) was well-established at the time of the ratification of the US Constitution.

Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[David Nieporent]

Martillo appears never to have read the 9th amendment. There was never any "right" to non-discriminatory common carriage, so there's nothing to "retain." Martillo is not even smart enough to understand that his arguments are self-contradictory; he keeps touting an 1848 New York law, without understanding that if such a right existed then there wouldn't have been any need for such a law.

[Jonathan Affleck]

A statute is often used to describe how a basic right is to be treated by a Court (especially how to punish an infraction) or how a basic right applies in the context of a new technology.

The 1848 New York Telegraph Act covered a lot of areas of the new telegraph technology, set penalties for discriminatory carriage, and punished theft, larceny, or unauthorized disclosure of a message.

Similar laws were later enacted with respect to common carriage of voice.

Massachusetts and many other states assume common carriage is fully defined in common law but has statutes that explain to a court how to punish an infraction of common carriage law or how to treat a new technology of common carriage like a digital transmission of a message (e.g., telegraphy) or common carriage by motor vehicle (e.g, a motorized truck).

At the time of ratification, there was as much a right to non-discriminatory common carriage as there was a right to sue a speaker, publisher, or distributor for libel. The Ninth Amendment protects such rights that were not explicitly guaranteed in the Bill of Rights. It is worthwhile to quote Blackstone (d. 1780) again because state law was British law until ratification of the US Constitution and the creation of post-independence state constitutions.

“There is also in law always an implied contract with a common innkeeper, to secure his guest’s goods in his inn; with a common carrier or bargemaster, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common taylor, or other workman, that he performs his business in a workmanlike manner; in which if they fail, an action on the case lies to recover damages for such breach of their general undertaking. But if I employ a person to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a special agreement is required. Also, if an innkeeper, or other victualler, hangs out a sign and offers his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveller.”

The passage tells us that non-discriminatory common carriage was a right and that a shipper could sue in assumpsit if the shipper were denied his right. Assumpsit today is an ordinary civil action like an action that might be filed for libel or for denial of explicit Constitutional rights.

[ReaderY]

So you’re OK with doing to social media companies what was done with telephone companies – creating a single common interoperability standard for all social media companies so that Facebook would for example have to carry and deliver messages that originated on Twitter, amd would be forced to use compatible technology so it could so so?

Because that’s how we got out of monopoly status for phone companies. The network’s interoperability standards, the core technologies, were in effect taken out of the phone companies’ control and made a public good. The same situation exists for the Internet itself, which has multiple entities communicate on a common technology platform with common standards.

You’re OK with government doing that for social media companies?

Forcing this kind of standerdization and interoperability would be a much more intrusive kind of government intervention than simple common carrier legislation.

[NOVA Lawyer]

Internet dystopians want to give private corporations unlimited power to control discourse......

You left off something. That should have read:

Internet dystopians want to give private corporations unlimited power to control discourse on their privately owned website.

Merely saying it reveals the vacuity of your position.

[Michael Ejercito]

Public accommodation laws already exist.

https://reason.com/2008/11/20/eharmony-forced-to-create-a-da/

[NOVA Lawyer]

Not really relevant here, unless social media companies were preventing messages of a protected class. But, so far, they aren't and that isn't what Texas and Florida are trying to prevent.

[Jonathan Affleck]

Facebook/Meta has made a legal admission of discrimination against Palestine advocates.

Palestine advocates reject the Zionist claim of a Jewish right to Palestine. The claim is religious and is based on scripture. Facebook/Meta discriminates on the ground of religion. Facebook/Meta violates 42 U.S. Code § 2000a - Prohibition against discrimination or segregation in places of public accommodation.

The Internet belongs to the set of "establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation." § 2000a(b)(4) applies to a social medium platform.

any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

[David Nieporent]

Not a single sentence of that is correct.

[Jonathan Affleck]

The discourse does not take place on the backend server of a private corporation. The backend server has bailment of messages, which are part of discourse that takes place on end-user devices just as discourse can take place on end user devices by means of an email service.

NOVA Lawyer is confusing a virtual reality or model with the actual operation of a social medium platform. It's like Noah's ridiculous argument about an AOL chat room. He in effect confused the movie with the movie theater.

A social medium platform is highly subsidized by the public -- far more than a telegraph system or a telephone system ever has been. Both foregoing systems are common carriers. Without the rest of the Internet, which does not belong to the social medium platform, the business of the social medium platform does not exist. The social medium platform runs a program on an end user device in order to carry a message to or from an end user.

[NOVA Lawyer]

The discourse does not take place on the backend server of a private corporation.

Which is irrelevant. ISPs, etc., do have to take all comers, unless I am mistaken, for various reasons including they are more like a telegram company that is just transmitting data from user to user.

The backend server has bailment of messages, which are part of discourse that takes place on end-user devices just as discourse can take place on end user devices by means of an email service.

This doesn't make a lot of sense. To the extent it makes any sense, it isn't right. And it's irrelevant.

All the same things can be said about CNN's website. But that's clearly a news website over which they have and should have and under the First Amendment must be permitted to have editorial control.

[Jonathan Affleck]

In 2023 only an ISP meets the 1996 definition of an ICS.

No 2023 social medium platform is an ICS.

If a web site includes user content, it probably comes under Title II of the CRA of 1964 even if all content is first sent to an editor for editorial approval.

Not only is the Internet a government-designated public forum, but the Internet also belongs to the class of “Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation.” The preceding clause does not require the Internet to be a place of public accommodation but only requires the Internet to be like or as a place of public accommodation. The same logic desegregated a public drinking fountain, which is an establishment supported by state action as a place of public accommodation for drinking water. A public drinking fountain is a device (a valve on a water pipe) and not a place that one can enter. A 2023 social medium platform is located within the Internet because it is located by connection and by IP address within the premises of the Internet. Premises includes grounds and appurtenances, which include wiring.

[David Nieporent]

Sigh. As I've told you multiple times, a drinking fountain is not an establishment. It is also not supported by state action. Nor is it a place of public accommodation. But other than getting every single thing you said wrong, you got the law wrong.

[Jonathan Affleck]

So Nieporent believes it is possible to have a segregated public drinking fountain despite the CRA of 1964.

From Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994).

"Nowhere does the statute refer to membership organizations, or otherwise indicate congressional intent to regulate anything other than public facilities.

"Nowhere does the statute refer to membership organizations, or otherwise indicate congressional intent to regulate anything other than public facilities."

The Internet, a public drinking fountain, a public restroom, a public pissoir, etc. are all examples either of something established and public or of a public facility.

Before the CRA, segregation at a public drinking fountain was compelled by (1), (2), or (3).

(d) Support by State action

Discrimination or segregation by an establishment is supported by State action within the meaning of this subchapter if such discrimination or segregation (1) is carried on under color of any law, statute, ordinance, or regulation; or (2) is carried on under color of any custom or usage required or enforced by officials of the State or political subdivision thereof; or (3) is required by action of the State or political subdivision thereof.

[NOVA Lawyer]

"If a web site includes user content, it probably comes under Title II of the CRA of 1964 even if all content is first sent to an editor for editorial approval."

I'm not sure how you think this is relevant or supportive of your position, even if true. The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin. It does not prohibit discrimination based on anti-vaccination ideology, political ideology, or any of the other bases for the moderation policies some people hate and with which Florida and Texas take issue.

I don't think you have gotten one single thing right in this entire discussion. You've decided how you think things should be and then you've tailored the "facts" to fit your argument, rather than vice versa.

[Jonathan Affleck]

I don't care about Covid issues, but I believe Covid should be subject to discussion in a public forum. Once upon a time doctors used to try to ban discussion of antiseptic procedures and called advocates of those procedures kooks. I don't trust medicine-related bans.

Palestine advocates reject the religion-based claim of modern Jews to Palestine. Facebook/Meta has already made a legal admission of discrimination against Palestine advocates and their content.

Such discrimination is discrimination on the ground of religion is conduct banned under the 1964 CRA.

[Jonathan Affleck]

When I worked for AT&T, there was a fast and efficient intraoffice mail system, which delivered hourly. We could conference by intraoffice mail when using a phone was impractical. A dispatch could be forwarded from one participant to the next. The discussion took place at our desks and not in the mail carts or in a sorting office.

A social medium platform has a database of messages on a backend server. There is no discussion until a participant in the discussion requests a message to be delivered to his computing device by common carriage. Then the participant responds and requests his response to be sent into the database by common carriage. The discussion continues when another participant requests delivery of the response to his computing device by common carriage.

[NOVA Lawyer]

"There is no discussion until a participant in the discussion requests a message to be delivered to his computing device by common carriage."

If you have even the slightest understanding of the internet, you understand that Facebook doesn't make the delivery. The user sends a request through his ISP, through other underlying aspects of the internet and telecommunications services, to Facebook's ISP, and then to Facebook.

For your telegraph example, user Tom in Little Town, USA wants an update on his family in Chicago. Facebook 1871 has a service where people in Chicago can tell the Facebook 1871 clerk when they have births, graduations, etc., and Facebook puts it in a ledger. Tom goes to Western Union, fills out a telegraph slip with a request to Facebook 1871, the Western Union clerk takes the slip and sends the telegram to the Chicago Western Union office. Facebook 1871's clerk collects Tom's and everyone else's request, goes to the ledger, writes out responses on Western Union's telegraph slips, goes back to Western Union and submits the slips to the Western Union clerk, who then transmits the response telegram to Tom. Western Union is the common carrier. Facebook 1871 is not, in any way, shape, or form, a common carrier. If you think otherwise, you don't understand anything about common carriers.

[Jonathan Affleck]

Facebook downloads a program to the user computing device. This frontend program participates in transportation of messages (common carriage of messages) to and from Facebook's backend software. In this common carriage, Facebook makes use of another common carrier, but this scenario is an allowed and frequent common carriage scenario.

[Jonathan Affleck]

A pure news website (no user content) delivers (by common carriage of messages) a news article to a user that requests an article to appear on his computing device.

A news website holds out carriage to the public for a fee (usually a subscription or work [eyes-on-page]) under standard terms.

While a news website is not an ICS, it is a common carrier of messages.

[NOVA Lawyer]

"While a news website is not an ICS, it is a common carrier of messages."

This is bonkers. A news website is very nearly the antithesis of a common carrier. Its whole purpose is to carry its own news/editorial content. It doesn't carry messages for anyone, it delivers (via the internet, phone lines, and/or radio/satellite, some of which are common carriers) its own messages.

You clearly don't understand how the internet works. CNN does not deliver anything. It has content. A user can request that content, and the content is delivered from CNN to the user by a separate entity which very often is a common carrier. But CNN definitely, absolutely, unequivocally is not a common carrier.

You are, basically, confusing the Sports Illustrated with the U.S. Postal Service. One entity creates, hosts, publishes content, another entity delivers the content. Same with social media platforms. They host, curate, and publish content. The content is delivered via various mechanisms of the internet none of which are owned, controlled, or otherwise part of the social media platform. And even if they were, just because Western Union owned a bank and telegraph services didn't transmogrify the bank into a common carrier. It's still just a bank.

That you think CNN is a common carrier makes me wonder why I've even been having a conversation with you.

[Jonathan Affleck]

I referred to a service of the website not to all services of Sports Illustrated. Common carriage is identified on a per service basis. A common carrier may offer non-common carriage services.

Nova Lawyer appears to believe that Sports Illustrated and CNN put content on a user display by magic.

[ReaderY]

I think social media companies are susceptible to common carrier laws. The basic feature that distinguishes them from publishers and makes them like telephone companies is that they are networks. As when making a telephone call, all parties to a communication have to hook into a technology network exclusively controlled by the social media company for messages to communicate.

Networks have different economics. A network becomes more valuable the more people hook into it. This makes a monopoly network much more valuable than a large number of competing smaller networks, creating a natural tendency towards monopoly. Print publishing has no such feature. It is not a network. Large numbers of small companies can compete, a single company publishing all the books isn’t the natural unregulated outcome.

Networks are common carriers in their nature and can be regulated as such. Libertarians may not like them and may wish there was no such thing, but like it or not they exist and have to be dealt with.

Government does not have to regulate social media companies as common carriers. But because they are networks, not publishers, it can.

[ReaderY]

You can have a network not controlled by a single company by having enforcable interoperability standards every company is required to conform to. Railroads, the telephone network, and the internet all work this way. Just pointing out that forcing Twitter to deliver messages originating on Facebook (etc.) would require much more intrusive government intervention than mere common carrier status. Historically, interoperability standards have come in addition to, not as an alternative to, common carrier status.

It might be counterproductive to take this approach right now. The social media business is in its infancy, the technology needs to evolve, and premature standardization could stifle that process. It might be better to wait until the technology is more mature to begin a standardization process.

[Jonathan Affleck]

New York enacted the first telegraph law that compelled non-discriminatory common carriage of telegraph dispatches in 1848 four years after the opening of the first telegraph service. The law addressed the same abuses that a social medium platform perpetrates.