The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Prof. Adam Candeub on the Texas Social Media Law
I'm glad to be able to pass along this item from Prof. Candeub (who has written extensively on this general subject):
The Texas social media law (H.B. 20) requires the major social media platforms to refrain from discrimination on the basis of viewpoint, thereby allowing those of all political, religious, and social views to participate in what the Supreme Court has called our "modern public square." The platforms challenged the law on First Amendment grounds in NetChoice v. Paxton, and the Court heard argument last February.
One of the arguments in favor of the law is that Texas can impose non-discrimination mandates on social media firms pursuant to its power to regulate public accommodation and common carriers. Grounded in actions of assumpsit dating back to the early-17th century common law, public accommodation law traditionally required businesses making generalized offerings of goods or services to the public to accept all customers—though at common law, such businesses could refuse or terminate a service offered to all in a general undertaking if they offered a legally valid reason, as Adam J. MacLeod explains. Property owners do not have absolute rights under the First Amendment to exclude speakers or speech they dislike or wish to suppress. Modern public accommodation, first codified in the mid-19th century, rejects certain types of discrimination as valid.
Similarly, under common carrier law, a legal category that predates public accommodations, firms that engage in the business of transmitting messages as part of an undertaking to provide carriage to everyone, such as letter and package carriers, telephones and telegraphs, must carry the speech of all regardless of viewpoint or the content of the message, as I explain.
Professor Ilya Somin recently wrote a post agreeing with Professor Christopher Yoo who argues that simply labelling a firm a "common carrier" "plays no significant role in the constitutional analysis" and that common carrier laws for social media violate the First Amendment. But, that doesn't seem quite right. Common carrier designation reflects a legislative judgment that businesses which carry their customers' messages should "stay in their lane" so as not to interfere with the expressive rights of their customers. And, for centuries the courts have respected that legislative judgment.
Allowing certain industries, particularly those that occupy vulnerable chokepoints in the flow of commerce and information, to engage in "editorial control," advances neither First Amendment values nor broader political social values. To make the point concretely, no one could possibly believe that phone companies or email providers should have the right to interrupt your conversations or messages with "fact checks" or censor conversations due to "misinformation." And, most would be uncomfortable with phone conversations interrupted by advertisements. At oral argument in Paxton, this was a point on which Supreme Court justices seemed to agree.
Over the years, courts have adopted various tests to determine what constitutes a common carrier. These tests include whether the firm at issue is affected with a public interest, possesses monopoly power, is involved in the transportation and communication industries, receives compensating benefits such as liability protection, or offers a uniform contract to all. Professor Yoo argues social media fails them all; I argue the opposite. I welcome the reader to make up his own mind.
But, Professor Somin makes three arguments that I could respond to here. First, he states that "the standard rationale for common carrier regulation is that the firms in question have some kind of monopoly power." This is not historically true. As Yoo points out, Bruce Wyman argued influentially for the market power justification in the early 20th century, but it does not fit the history of common carrier regulation which included non-monopolies from its beginning.
Assuming arguendo, however, that market power is relevant to common carrier classification, Somin rejects the claims that the social media platforms exercise market power. Indulging in a bit of "folk market power analysis," he points to survey data where respondents state they receive more of their news information from television than social media, and he points to the existence of major conservative news outlets. These facts, Somin argues, undercut any claim that the social media can effectively strangle conservative markets or has the market power to provide inferior products to its users. Interestingly, Professor Richard Epstein took the opposite view in his amicus in Paxton.
Courts throughout the country—and in Europe—have found that the major internet platforms exercise market power. They may do so in unusual ways that economists don't quite understand yet, exploiting network effects in an environment of "free" user service. But, it is certainly a reasonable legislative judgment, well within Texas's purview, that they do exercise market power. And, to indulge in some "folk market power analysis" of my own, social media platform market power and network effects is the only way to explain why all those lefties and libs stay on Elon Musk's X.
Second, Somin argues that common carrier analogies are "misplaced" because "the whole point of most political discourse on social media is the ability to reach a large audience" and discriminatory content moderation lets "consumers to find the material they want, while avoiding harassment, offense, and other things that make the experience annoying, unpleasant, or simply a waste of time."
But the Texas law only prohibits viewpoint discrimination—not content discrimination. Somin mischaracterizes the Texas law when he claims common carrier mandate "impos[es] a near-total ban on such [content-moderation] rules." Platforms would be free to remove "harassment" or other "unpleasant" material in the same way that phone networks can remove callers who make crank or harassing calls. Facebook would be free to ban objectionable content such as nudity—but not advocates of naturism, whom some might consider objectionable.
Further, users already control what they see on social media for the most part. They chose and block users. Indeed, there's a famous charge against social media platforms that they allow users to create ideological "bubbles." And, last, common carriers carried newspapers and magazines and other material that was political discourse meant for a large audience. Indeed, that was their whole point. One of the first acts of Congress was to mandate special rates for the carriage of newspapers.
Third, Somin claims "moderation rules and content restrictions are crucial for social media, … it is far better for the quality … of such rules to be determined by competition in the market than by one-size-fits-all government mandates."
This argument, I concede, makes me feel as if Professor Somin and I live in different worlds. At this moment, Elon Musk's X is the only social media company holding out against Brazil's efforts to use the platforms to silence political opposition. No one can doubt that the social media platforms colluded with government to silence critics during the COVID debacle—and worked to censor Hunter Biden's laptop at a critical moment in the 2020 elections. The Twitter files revealed a vast bureaucratic collusion among the platforms, government, and non-profit organizations to monitor and censor speech. And, most frighteningly, the EU's Digital Service Act (DSA) imposes government censorship on the platforms in Europe. The major platforms now have a choice: offer a cheaper-to-run EU compliant censored internet for the whole world or create a second platform: a special, geo-fenced "free" internet only available in the U.S. Without H.B. 20, which would outlaw such censorship, the EU may end up determining what gets said on social media worldwide, including in the United States.
I don't think I'm being hyperbolic when I assert these developments threaten free speech on this planet. Only Texas's H.B. 20 stands against them. These developments outstrip concerns in the "quality" of one's social media. I certainly respect the strict libertarian, anti-regulatory stance that Professor Somin's arguments reflect. And, like most conservatives, I agree with that stance 95% of the time. But, all theory must yield to reality. Given the willingness, even eagerness, of the platforms globally to work with government to discriminate against politically unpopular viewpoints, it seems to me that those who love liberty and treasure freedom of thought and expression should support H.B. 20 and at least consider the common carrier principles that help to justify its legality.
