The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Social Media, Freedom of Speech, and Common Carriers: Response to Adam Candeub

If adopted by the Supreme Court, Prof. Candeub's approach would be a grave menace to freedom of speech.


Blocked Facebook page | Rafael Henrique |
(Rafael Henrique |

In a recent guest post at this site, Prof. Adam Candeub has put up a thoughtful critique of my argument that government cannot use "common carrier" status to severely restrict the rights of social media firms to engage in content moderation on their sites. While I appreciate Candeub's effort, I remain unrepentant. Indeed, one valuable aspect of his argument is that it highlights the dangerous implications of the common carrier theory currently being advanced by Texas and Florida in their attempts to defend their social media laws before the Supreme Court.

Candeub argues that state governments can impose common carrier status on social media firms on the basis that they have "market power" or simply because they must be compelled to "stay in their lane." Either theory would have drastic implications for freedom of speech.

As I have pointed out previously, social media firms certainly don't have anything like monopoly power in the sense of being able to prevent widespread dissemination of speech they refuse to host on their sites. All of the examples of "censored" speech Candeub and others cite—revelations about Hunter Biden's laptop, anti-vaxxer speech, critiques of Covid policy, speech supporting Trump's claims that the 2020 election was stolen from him, and so forth—received wide circulation elsewhere, particularly in major right-wing media outlets, such as Fox News.

If the argument is that posting this speech on social media sites such as Twitter or Facebook would have enabled it to reach a bigger audience or a different group of people from that reachable through other sites, that argument can be used to justify abrogating the speech rights of a wide range of media outlets and other organizations. I explained why here:

Even if Twitter and Facebook don't actually monopolize the market for political information, it's certainly true they reach various potential audiences that are difficult or impossible to reach in other ways. But, if that justifies forcing them to abjure restrictions on content, the same theory would rationalize imposing the same requirements on other types of media. Fox News, the New York Times, the Wall Street Journal, and a variety of other major broadcast and print media outlets also reach large audiences that can't always be easily reached in other ways. By that rationale, they too can be forced to be common carriers!

Candeub is right on one point. It does feel as if he and I "live in different worlds." I live in a world where there is extensive right-wing media ready, willing, and able to broadly disseminate speech that left-wing social media outlets may prefer to exclude—and vice versa. And I live in the world where all of the viewpoints discussed above do in fact enjoy widespread dissemination. Don't take my word for it! Search for them using Google (or any other search engine), and you will quickly see how easy it is to access them—including on sites with large audiences.

There is no monopoly power here. And if mere disproportionate influence—defined as "market power"—is enough to justify government coercion of social media firms to post material they disapprove of, it can justify similar measures against any major media outlet. Fox News could be forced to air left-wing speech it would otherwise reject, the New York Times could be forced to publish more material by MAGA types, and so on.

The "stay in their lane" argument has similar awful implications. The "lane" occupied by social media firms has never been limited to completely "neutral" dissemination of material regardless of viewpoint. They have always exercised editorial judgment, and most consumers want it that way.

Candeub argues this issue can be deal with by distinguishing "content" moderation from viewpoint restrictions, thus potentially allowing social media firms to still exclude material that constitutes "harrassment" or is otherwise "unpleasant." But content and viewpoint is often closely linked. For example,  obscene content or nasty—"unpleasant"—language is often used to underscore a point. Moreover, many users might prefer an experience free of viewpoints they consider offensive or wasteful of their time, such as Holocaust denial or "flat earth" advocacy. Such substance-based curation is a standard feature of social media firms. Every major social media site—including Twitter/X under Elon Musk—engages in it.

The advantage of free-market competition and choice is that people who dislike one firm's content moderation have other options. Candeub notes many left-wingers remain on Twitter, despite Musk's takeover and introduction of rules they dislike, suggesting that proves the firm has "market power." But, in fact, many Twitter users have left since he took over—a 23% decline in US usage since Musk took control in November 2022. Presumably, those leaving include many of those who dislike his policies the most.

The "common carrier" policies imposed by Texas and Florida and defended by Candeub would eliminate most such choice. They would impose a single mandatory system of content regulation on all major social media firms. That kind of coercion is an obvious menace to freedom of speech.

Candeub also brings up the by now familiar analogy between social media firms and enterprises like phone companies and mail carriers. In a previous post on this subject, criticized that analogy as follows:

With rare exceptions, phone calls and letters only reach a small, specifically intended audience. Unless they are illegally tapping the line, the general public does not and should not have access to your phone conversations. Ditto for your mail. By contrast, the whole point of most political discourse on social media is the ability to reach a large audience all at once. But an information product that reaches a large audience simultaneously usually works better if it has at least some moderation rules, and other constraints that enable 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.

Candeub protests that "common carriers carried newspapers and magazines and other material that was political discourse meant for a large audience." This overlooks the obvious reality that any individual package transported by such carrier was in fact directed at a specific individual or small group. It was not at a site seen by millions of people at once. That, of course, is even more true of phone calls. On social media sites (and other websites with large audiences), the content simultaneously visible to thousands or even millions of people. The latter scenario requires more extensive content control than the former.

Candeub suggests that social media users can control what they see by techniques like blocking content. But such tools are imperfect. Regular users of sites like Twitter and Facebook often encounter content they find to be annoying, time-wasting, or objectionable. Moreover, many users might find it annoying to be constantly having to block material.

Others, by contrast, might prefer to have little or no content moderation.  And that's fine, too! The existence of such divergent preferences is an important consideration against letting government mandate a one-size-fits-all content moderation policy for all platforms.

In the last part of his post, Prof. Candeub laments various efforts by governments to "silence critics" by coercing social media firms into taking down content. I too oppose coercion. But it doesn't follow that "Only Texas's H.B. 20 stands against" such dangers. Such claims overlook the obvious alternative of banning coercion across the board: with extremely rare exceptions, government should be equally barred from forcing social media firms to take down content (as the Biden Administration apparently sought to do in some cases) and forcing them to put it up (as Texas and Florida seek to do). Rather than fighting one type of speech coercion with another, we can enforce the First Amendment, and prevent both.