Month: July 2021

Another excerpt from my Social Media as Common Carriers? article (see also this thread):

[* * *]

These days, calls to treat social media platforms as common carriers are mostly coming from the Right, likely because such platforms are perceived (rightly or wrongly) as run by progressives who are especially likely to censor conservative voices. But the link to the argument in the Citizens United dissent may help explain why some top scholars on the Left, such as Erwin Chemerinsky,[41] Michael Dorf,[42] Genevieve Lakier,[43] and Nelson Tebbe,[44] have suggested similar regulations.[45]

Some advocacy groups on the Left have likewise accused platforms of improperly restricting their speech.[46] And of course even many conservatives, while generally more skeptical of government regulation of private actors, have long been open to some regulation, especially when the private companies have been seen as monopolies or close to it.[47]

Hard-core libertarians, who oppose virtually all government regulation of private business transactions, are likely to oppose common carrier status for platforms (and perhaps the concept of a common carrier altogether).[48] And of course many liberals, moderates, and conservatives may conclude that, even if such common carrier rules aren’t theoretically impermissible, they are likely to be unsound in practice. But my point here is simply that the concerns about platform power are not exclusively a matter for one or another side of the ideological divide.

[41] Prasad Krishnamurthy & Erwin Chemerinsky, How Congress Can Prevent Big Tech from Becoming the Speech Police, Hill (Feb. 18, 2021), https:‌//‌perma.cc/‌645W-LMLP.

[42] Michael C. Dorf, Could Clarence Thomas Be Right About Twitter?, Verdict (Apr. 14 2021), https:‌//‌perma.cc/‌D7AB-8Z4M.

[43] Genevieve Lakier & Nelson Tebbe, After the “Great Deplatforming”: Reconsidering the Shape of the First Amendment, Law & Political Economy [LPE] Project (Mar. 1. 2021), https:‌//‌perma.cc/‌56F3-KMBE.

[44] Id.

[45] Rebecca Tushnet had long before likewise expressed some concern about excessive intermediary power. Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First Amendment, 76 Geo. Wash. L. Rev. 986, 1010, 1015 (2008).

[46] See, e.g., Natasha Lennard, Facebook’s Ban on Far-Left Pages Is an Extension of Trump Propaganda, Intercept (Aug. 20, 2020), https:‌//‌perma.cc/‌Z2JC-YEEB (arguing that Facebook was banning a wide variety of “anarchist[] and anti-fascist[]” groups); Andre Damon, Facebook Purges Left-Wing Pages and Individuals, Int. Comm. of the Fourth International [World Socialist Web Site] (Jan. 23 2021), https:‌//‌perma.cc/‌7EX8-ADUY.

[47] See, e.g., Ryan Cooper, Even Republicans are Getting Fed Up with Monopolies. Here’s Why, The Week (Apr. 1 2016), https:‌//‌perma.cc/‌Z876-N337. Likewise, some arguments for wedding providers’ right to refuse service to same-sex weddings under religious freedom protections or under the compelled speech doctrine—generally seen as a conservative position—have acknowledged that those exemptions might be denied if there are too few other alternatives to those businesses’ services. See, e.g., Douglas Laycock, Afterword, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts 200–01 (2008) (“Religious dissenters can live their own values, but not if they occupy choke points that empower them to prevent same-sex couples from living their own values. If the dissenters want complete moral autonomy on this issue, they must refrain from occupying such a choke point.”); Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. REV. 1417, 1485 (2012) (“An objector in the stream of commerce may object only if a ‘substantial hardship’ would not result.”); Executive Summary of Statement of William Bassett et al., Hearing Before Hawaii Senate Committee on Judiciary and Labor 9–10 (Oct. 28, 2013), https://ift.tt/3xkE1II; Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595, 1629–30 (2018); cf. Attorney Gen. v. DeSilets, 636 N.E.2d 233, 242–43 (Mass. 1994) (concluding that whether landlords should get religious exemption from bans on housing discrimination against unmarried couples should turn on “whether the rental housing policies of people such as the defendants can be accommodated, at least in the [particular geographical] area, without significantly impeding the availability of rental housing for people who are cohabiting,” and in particular on whether “a large percentage of [housing] units are unavailable to cohabitants”); see also John Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 172 (2012) (calling for a similarly “fact-specific contextual analysis” with regard to private clubs’ right to exclude).

[48] See, e.g., Katherine Mangu-Ward, Don’t Try to Fix Big Tech with Politics, Reason, July 2021, https:‌//‌perma.cc/‌8CQ7-2J6T (Mangu-Ward is the editor-in-chief of Reason magazine, the most prominent libertarian publication in the U.S.); John Samples, Why the Government Should Not Regulate Content Moderation of Social Media, Cato Institute (Apr. 9, 2019), https://ift.tt/3AvUZ8N (Samples is Vice President of the Cato Institute, one of the most prominent libertarian think tanks in the U.S.).

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The Supreme Court’s October 2020 term is in the books, and there is no word on whether Justice Stephen Breyer will retire in order to ensure that President Biden names his replacement. Justice Breyer has hired the full complement of clerks for the coming term, and it appears he wants to have one more year as the senior-most liberal on the Court. If the Court is going to be split 6-3, Breyer may be thinking, he might as well be the voice of the three.

Most of those urging Justice Breyer to retired focus on the long term balance of the Court. Breyer should retire now, they argue, so as to ensure that his seat is filled by a Democratic president with a Democratic Senate. This would keep a liberal seat in liberal hands well into the future by replacing a justice in his 80s with one in her 40s or 50s. Those trying to pressure Breyer to retire also worry about what would happen were the Senate to fall back into Republican hands.

Replacing Justice Breyer with a Democratic appointee would maintain the Court’s current balance on many high-profile issues, such as race, abortion, religion and even property rights. But I think it is a mistake to assume that a younger, liberal justice would replicate Justice Breyer’s jurisprudence and voting pattern across the board. In at least one area—criminal justice—I suspect that a new liberal justice would differ significantly from Justice Breyer.

Throughout his time on the Court, Justice Breyer has been a notably pro-government justice. This has meant support for government regulation, but it has also meant more sympathy for police officers and prosecutors than the typical liberal justice. While Justice Breyer has turned against the death penalty, his pragmatism has also made him more open to government arguments that the rights of suspects and defendants need to be balanced against practical considerations. When the Court splits along formalist-pragmatist lines over criminal procedure, Breyer usually sides with the pragmatists.

A younger liberal justice would likely be more skeptical of government, and law enforcement in particular, than Justice Breyer has been. In a sense, you could say a Breyer replacement would likely be a bit more libertarian. Some of the difference would likely be due to a greater sensitivity to the racial implications of deferring to government power, but some of it would also be generational. As I’ve noted before, we are already seeing hints of a generational split on criminal justice among the conservative justices, as in Van Buren, and I suspect we will see a similar divergence between Justice Breyer and a younger liberal replacement, if and when he eventually leaves the Court.

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The Supreme Court’s Term has now drawn to a close. So far, we don’t have any leaks about internal struggles on the Supreme Court. Yet, on at least two occasions this Term, Justices Thomas, Alito, and Gorsuch have expressed concern about the two newest members of the Court. Specifically, the Thomas-3 allege that Justices Kavanaugh and Barrett lack backbone. Blink, and you’ll miss these serious allegations. But parse the Court’s cases carefully–especially the shadow docket–and the red flags are unmistakeable.

Newsweek has published my new op-ed, titled Conservative Justices Warn Kavanaugh and Barrett Lack ‘Fortitude.’

Here is the introduction:

For the first time in a generation, there are six conservative justices on the Supreme Court. In time, this sextet will incrementally push the Court to the right. Yet, three of them are already sounding an alarm. Twice this term, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone.

In an excessive force case, the conservative trio wrote that the two newest Justices were “unwilling to…bear[] the criticism that” denying the prisoner’s appeal “would inevitably elicit.” And in a religious liberty case, the Thomas-3 charged that Kavanaugh and Barrett lacked the “fortitude” to overrule a controversial precedent. The conservatives implied a similar fissure in several other cases.

It is fairly common for justices to criticize their colleagues’ legal judgments. But it is rare for justices to claim that their colleagues are motivated by cowardice. The putative 6-3 conservative majority is, in fact, far from monolithic. At present, we have a 3-3-3 Court. There are three progressives, three conservatives and three members in the middle. Only time will tell whether Justices Kavanaugh and Barrett will sidle up to Chief Justice John Roberts’ P.R.-based jurisprudence, or whether they will stand on their constitutional principles.

These warnings came in two cases. First, Fulton:

Gorsuch charged that the majority “dodg[ed] the question today.” In a not-so-subtle warning to the other two Trump appointees, Gorsuch wrote that “these cases will keep coming until the Court musters the fortitude to supply an answer.” Gorsuch thus called out Kavanaugh and Barrett for lacking “fortitude” in the present moment. This personal attack no doubt reflects simmering tensions within the Court, and those tensions have now spilled into public view.

Second, Lombardo v. City of St. Louis:

Alito, joined by Thomas and Gorsuch, dissented. Based on the process of elimination, Kavanaugh and Barrett agreed with the Court’s strange punt. Alito savaged his colleagues. He wrote that the Court was “unwilling to…bear[] the criticism that” denying the appeal “would inevitably elicit.” In all likelihood, this punt merely delayed the government’s inevitable victory. But, in the meantime, the Supreme Court gets credit for keeping the case alive. Once again, the Court aired its dirty laundry in public. The three conservatives alleged that Kavanaugh and Barrett were afraid of public criticism, and instead chose to virtue-signal.

The 3-3-3 dynamic was evident in other cases, including South Bay II, Arlene’s Flowers, Republican Party of Pennsylvania v. Degraffenreid, and others.

We should take these warnings seriously.

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You can also read the article in PDF, or read all the posts that have been posted so far on this thread; but in this post, I excerpt the start of the policy analysis.

A commenter on the Introduction post, by the way, remarked that such calls for treating social media platforms as common carriers aren’t very libertarian or conservative—and they’re not. They stem from a concern that’s mostly associated with liberals (though not foreign to conservatives): the concern over excessive private corporate power, which sometimes needs to be checked by government power. I’m generally skeptical about such concerns (more on that later), but I wonder whether in this instance this traditional liberal worry is justified. More below, and more on the First Amendment questions coming up soon.

[* * *]

Let’s begin with the policy question, and ask: Why might we want phone companies to be barred from cutting off service based on subscribers’ viewpoints?

Say a phone company argues: We don’t want our service to be used to promote racial hatred or advocacy of Communism or conspiracy theories, and our other subscribers don’t want it, either. We want to be able to cancel phone lines of subscribers who are publicly known to be engaging in “hate speech” or advocating violence or revolution.[17] That speech is “terrible,” and it “hurts society.”[18] Why does the law preclude the companies from doing this—even when they’re not monopolies, such as landline companies might be,[19] but are highly competitive cell phone providers?

I take it one answer might be something like this: We don’t want large business corporations deciding what Americans can say in a particular medium of public communication. Sometimes, in the few areas where the First Amendment permits government regulation, the people’s representatives decide that. Usually, individual speakers and listeners decide that.[20] But companies that provide communications infrastructure should provide the infrastructure, not control what may be communicated on it.[21] When “dominant digital platforms” have the power “to cut off speech,” we should be as concerned about that power as we are about, say, government power to exclude people from limited public forums.[22]

This is generally the attitude, I think, even as to many platforms that aren’t legally common carriers. For instance, though the FCC has held phone companies are not common carriers as to text messaging, the rationale for that decision was the need to block unwanted robotexting—and as to messages among willing customers, a concurring opinion assured readers that, “Tomorrow, like today, our text messages will go through.”[23]

Likewise, e-mail systems are generally not treated as common carriers, and can in theory legally screen messages based on their viewpoints or on their supposedly spreading conspiracy theories or misinformation. Still, I suspect that most people would be surprised if Microsoft (Outlook) and Google (Gmail) decided to control their communications this way. In the words of New York’s high court, an e-mail system’s “role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers’ conversations.”[24]

Of course, phone companies or delivery companies might well use their power wisely, to block speech that the government can’t suppress but that is still bad—bad for its subjects who are being insulted or harassed or defamed, bad for democracy, bad for public health, bad for the victims of crimes that the speech might inspire.[25] But such companies, like all human institutions, can act badly as well as well. And common-carrier law allows us “not to place all one’s hopes in the good will of corporate actor.”[26]

This is connected to the argument of the Court’s majority in Austin v. Michigan Chamber of Commerce and of the four dissenters in Citizens United v. FEC: The power of immensely rich corporations may “give corporations unfair influence” and “distort public debate[s].”[27] Or, in the words of the liberal think tank Demos, criticizing Citizens United: “Concentrated wealth has a distorting effect on democracy[;] therefore, winners in the economic marketplace should not be allowed to dominate the political marketplace.”[28]

I think the Citizens United majority was right to hold that this couldn’t justify restricting corporations’ own speech. But the argument for limiting the power of massive corporations strikes me as especially strong—and, as the next Part will argue, consistent with the First Amendment—when the corporations are using their immense “financial resources” not just to try to persuade listeners through the corporations’ own speech, but to suppress others’ speech.

Indeed, much of Justice Stevens’ argument in his Citizens United dissent would apply to such selective blocking decisions by infrastructure companies:

A legislature might [reasonably] conclude that unregulated general treasury expenditures will give corporations “unfair influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match…. [Because of the speech of corporations,] the opinions of real people may be marginalized…. “[Corporate] expenditure restrictions … are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.”

Corporate “domination” of electioneering can [also] generate the impression that corporations dominate our democracy…. The predictable result is cynicism and disenchantment: an increased perception that large spenders call the tune and a reduced willingness of voters to take part in democratic governance.

To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation…. Unregulated corporate electioneering might diminish the ability of citizens to hold officials accountable to the people, and disserve the goal of a public debate that is uninhibited, robust, and wide-open.[29]

Though Justice Stevens wrote this about corporate speech about particular candidates,[30] I think it applies to corporate restrictions on speech about public issues more broadly, since such restrictions can obviously affect elections, whether imminent ones or future ones. And of course such speech about public issues can range from detailed ideological argument, to short slogans (“Fuck the Draft” / “God Hates Fags”[31]), and to the personal-as-political (such as sexual minorities’ coming out of the closet or some speakers’ refusal to use transgender people’s preferred names or pronouns[32]).

These concerns also apply to social media platforms as much as to phone companies and other business corporations. For many advocacy groups, social media presence is as important as having a phone line, and might even be more so.[33]

It’s true that groups could communicate even without Facebook or Twitter, and historically had of course done so before social media was invented. But likewise they could communicate without phone lines, as political movements did throughout much of American history.

In an environment where advocacy groups compete with each other for support and attention—and do so by communicating to the public—denying a group a vastly important means of public communication is a serious burden. And it’s a serious leveraging of the platforms’ economic power to affect the community’s political life.[34]

Indeed, it’s a much more serious leveraging, I think, than with corporate election-related speech as such. Corporate independent expenditures related to political campaigns are a relatively minor portion of all political expenditures (likely only about 5–10%), roughly the same as unions.[35] “While corporations and unions gained potential political power as a result of Citizens United, it’s individual donors who are fueling the explosion of money in recent elections.”[36] But the social media platforms put together have far greater control over the speech marketplace. Likewise, Justice Stevens argued that, “The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match”[37]—and one could add that 47 U.S.C. § 230(c)(1) immunity from libel and similar lawsuits has likewise allowed platforms to amass and deploy financial resources on a scale that few corporations can match.

And recall that Justice Stevens was concerned about a fairly indirect form of speech restriction: “corporations grabbing up the prime broadcasting slots on the eve of an election” and thus “drowning out … noncorporate voices”[38] (something that appears not to happen that much). Corporations’ actually restricting what people can say on hugely important social media platforms seems like an even more significant interference with public debate. “That private technology platforms exert unparalleled power over political discourse is deeply undemocratic,” write Prasad Krishnamurthy and Erwin Chemerinsky,[39] and I’m inclined to agree.

This is particularly so for platforms that are near monopolies in their particular fields. But even in the absence of a monopoly, “similar terms, similar market forces, and the societal pressures all services face regarding a controversial or distasteful product” may end up broadly restricting viewpoints of which Big Tech managers and employees.[40]

To be sure, all this doesn’t mean that diminishing this power is necessarily a wise idea. Perhaps some solutions to the problem are even more undemocratic, or perhaps the platforms’ free speech rights justify even such undemocratic results (more on that in the next Part). But we should seriously consider whether something can and should be done about that power, and treating the platforms’ hosting function like we treat phone companies seems like one plausible option.

[17] Assume all this is done without listening in on private phone calls, but just by consulting public statements (e.g., an extremist group’s public ads that list a phone number) or reviewing texts that come from a phone number and that were passed along to the phone company by the recipient. Texting is generally not governed by common carrier rules, but telephone service is; and seeing a text from a phone number might move the phone company to cancel that number’s phone service and not just its text service.

[18] [Add citation.]

[19] These days, even landline phone companies often face competition from cable operators, which can provide phone service, as well as cellular companies.

[20] When speakers and listeners disagree, telephone companies can implement viewpoint-neutral technologies helping listeners, such as call blocking; but let’s focus here on speakers speaking to willing listeners.

[21] See Angela J. Campbell, Publish or Carriage: Approaches to Analyzing the First Amendment Rights of Telephone Companies, 70 N.C. L. Rev. 1071, 1133 n.326 (1992).

[22] Biden v. Knight First Am. Inst. at Columbia Univ., 141 S. Ct. 1220, 1224, 1227 (2021) (Thomas, J., concurring).

[23] In re Petitions for Declaratory Ruling on Regulatory Status of Wireless Messaging Service, FCC 18-178, at 6 (Dec. 13, 2018) (O’Rielly, Comm’r).

[24] Lunney v. Prodigy Servs. Co., 723 N.E.2d 539, 542 (N.Y. 1999). The court so held in concluding that e-mail systems should be categorically immune from libel liability for their users’ messages to each other, just as phone companies are; the case arose before 47 U.S.C. § 230 was enacted, so the court chose to decide it as a matter of state libel law, rather than considering whether § 230 should be applied retroactively. Id. at 543.

[25] See, e.g., Mary Anne Franks, The Free Speech Black Hole: Can The Internet Escape the Gravitational Pull of the First Amendment?, Knight First Amend. Inst. Colum Univ. (Aug. 21, 2019), https:‌//‌perma.cc/‌HAX8-3RZN .

[26] Genevieve Lakier & Nelson Tebbe, After the “Great Deplatforming”: Reconsidering the Shape of the First Amendment, Law & Political Economy [LPE] Project (Mar. 1. 2021), https:‌//‌perma.cc/‌56F3-KMBE.

[27] Citizens United v. FEC, 558 U.S. 310, 469, (2010) (Stevens, J., dissenting) (cleaned up).

[28] Liz Kennedy, 10 Ways Citizens United Endangers Democracy, Demos (Jan. 19, 2012), https:‌//‌perma.cc/‌NMX4-NNUE; see also Adam Candeub, Reading Section 230 as Written: Content Moderation and the Beggar’s Democracy, 1 J. Free Speech L. __ (2021) (expressing concern about “an elite oligarchy controlling information”).

[29] Citizens United, 558 U.S. at 469 (cleaned up in part).

[30] See also Kyle Langvardt, Will the First Amendment Scale? (forthcoming 2021) (likewise suggesting that social media platforms’ decisions “by selectively amplifying and tamping newspaper coverage of competing candidates in the run-up to the election, and then on election day tweaking the emotional content of news feeds to drive and depress voter turnout along party lines” would raise similar concerns).

[31] Cohen v. California, 403 U.S. 15, 16  (1971); 562 U.S. 443, 448 (2011).

[32] See, e.g., Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 595 P. 2d 592, 610–11 (Cal. 1979) (concluding that people’s “identify[ing] themselves as homosexual” is a form of “political activity”); Meriwether v. Hartop, 992 F.3d 492, 506 (6th Cir. 2021) (concluding that not using a person’s preferred pronouns “touches on gender identity—a hotly contested matter of public concern”).

[33] Phone lines might be necessary for individuals if they need to call 911 or deal with various necessities of life (e.g., making a doctor’s appointment). But a phone company’s decision to cancel an advocacy group’s publicly advertised phone line—or at least block incoming phone calls to that line—wouldn’t generally jeopardize individual health and safety.

[34] By way of analogy, Adam Smith wrote against taxing “necessar[y]” commodities, but noted that necessity needs to be measured based on the realities of current life, not of the past. “By necessaries I understand not only the commodities which are indispensably necessary for the support of life, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be without. A linen shirt, for example, is, strictly speaking, not a necessary of life. The Greeks and Romans lived, I suppose, very comfortably though they had no linen. But in the present times, through the greater part of Europe, a creditable day-labourer would be ashamed to appear in public without a linen shirt, the want of which would be supposed to denote that disgraceful degree of poverty which, it is presumed, nobody can well fall into without extreme bad conduct.” Adam Smith, The Wealth of Nations 368 (1843). So it is with social media: More than just the Greeks and Romans lived very comfortably without them, but in our society access to the major social media platforms is a necessity—especially in a competitive political environment—for political groups.

[35] Corporations contributed about $300 million to outside spending groups in the 2012–18 federal election campaign cycles, and unions contributed about $275 million. Karl Evers-Hillstrom, More Money, Less Transparency: A Decade Under Citizens United, OpenSecrets.org (Jan. 14, 2020), https:‌//‌perma.cc/‌KQ46-VUQM. The corporate contributions “made up 10 percent of funding to these groups in the 2012 cycle, a high water mark,” falling to 5% in 2018. Id. There is also an unknown amount of undisclosed spending (which includes some corporate spending) through groups such as 501(c)(4) organizations that engage in both political and nonpolitical activities; the government could in principle require disclosure of contributions to such groups, but current law does not comprehensively do so.

[36] Id.

[37] Citizens United v. FEC, 558 U.S. 310, 469 (2010).

[38] Id. at 470 (cleaned up).

[39] Prasad Krishnamurthy & Erwin Chemerinsky, How Congress Can Prevent Big Tech from Becoming the Speech Police, Hill (Feb. 18, 2021), https:‌//‌perma.cc/‌645W-LMLP.

[40] See, e.g., Jennifer Huddleston, Consequences of Classifying Elements of the Internet as a Common Carrier, American Action Forum (Feb. 23, 2021), https://ift.tt/36jSfxz (so arguing, in the process of arguing against regulating social media platforms); Epstein, supra note 9, at 5–6 (so arguing, in the process of tentatively arguing in favor of regulating social media platforms).

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7/6/1835: Chief Justice John Marshall dies.

 

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You can also read the article in PDF, or read all the posts that have been posted so far on this thread. I still have time to make edits, and I’d love to hear what corrections or suggestions or counterarguments people have. Here, to start with, is the Introduction:

[* * *]

Say that the U.S. Postal Service refused to allow the mailing of KKK, Antifa, or anti-vax publications.[1] That would be unconstitutional,[2] however much we might appreciate the desire of USPS managers to refuse to participate in spreading evil and dangerous ideas. And though UPS and FedEx aren’t bound by the First Amendment, they too are common carriers[3] and thus can’t refuse to ship books sent by “extremist” publishers.[4]

Likewise for phone companies, whether land-line monopolies or competitive cell phone providers.[5] Verizon can’t cancel the Klan’s recruiting phone number, even if that number is publicly advertised so that Verizon can know how it’s being used without relying on any private information.[6] To be precise, the companies need not be common carriers as to all aspects of their operation: They can, for instance, express their views to their customers in mailings accompanying their bills, without having to convey others’ views.[7] But they are common carriers as to their function of providing customers with telephone communications services.

And this seems to me to be a valuable feature of our regulatory system, not just an odd side effect of common carrier law. Certain kinds of important infrastructure, under these rules, are available equally to all speakers, regardless of the speakers’ ideologies. Government enterprises (such as the post office) shouldn’t decide which organizations or ideas should be handicapped in public debates. And neither should large private businesses, such as phone companies or package delivery services.

That is important even as to groups and viewpoints that are seen as extreme. But it is especially important as to viable political candidates, ideas, or media outlets that are serious competitors in democratic life. When elections are closely divided, even small interference with various groups’ ability to affect public opinion can make a big difference in outcomes.[8] FedEx and Verizon shouldn’t have the power to thus affect elections by refusing to carry certain views.

On the other hand, say the Los Angeles Times refuses to run an ad promoting the KKK, or promoting Antifa, or opposing vaccination. There is good reason to support the Times’ right to do this. People read the Times in part precisely because of its editorial judgment, its ability to winnow the good and sensible views out of the vast mass of nonsense and folly; treating the Times as a common carrier would make it useless. And indeed the Times would have a First Amendment right to refuse to publish whatever material it chooses.[9]

The same would likely happen if a bookstore refused to distribute books like that. Perhaps both the newspaper and the bookstore might be condemned as unduly narrow-minded, if they go too far in excluding such material, at least unless they promote themselves as being ideologically focused. But for material that is seen as sufficiently extreme, newspapers’ and bookstores’ rejecting such material is quite normal.

The question, of course, is where we might fit the various functions of social media platforms.[10] This Article will offer some (often tentative) thoughts on this questions. I’ll begin by asking in Part I whether it’s wise to ban viewpoint discrimination by certain kinds of social media platforms, at least as to what I call their “hosting function”—the distribution of an author’s posts to users who affirmatively seek out those posts by visiting a page or subscribing to a feed.

I’ll turn in Part II to whether such common-carrier-like laws would be consistent with the platforms’ own First Amendment rights, discussing the leading Supreme Court compelled speech and expressive association precedents, including PruneYard Shopping Center v. Roberts; Turner Broadcasting System v. FCC; Rums­feld v. FAIR; Miami Herald Co. v. Tornillo; Wooley v. Maynard; Pacific Gas & Electric Co. v. Public Utilities Commission; Riley v. National Federation of the Blind; Hurley v. Irish-American Gay, Lesbian & Bisexual Group; NIFLA v. Becerra; Boy Scouts of America v. Dale; and Janus v. AFSCME. (I discuss elsewhere whether such laws, if enacted on the state level, would be barred by 47 U.S.C. § 230(c)(2)(A) and the Dormant Commerce Clause.[11]) And then I’ll turn in Part III to discussing what Congress may do by offering 47 U.S.C. § 230(c)(1) immunity only for platform functions for which the platform accepts common carrier status, rather than offering it (as is done now) to all platform functions.

On balance, I’ll argue, the common-carrier model might well be constitutional, at least as to the hosting function. But I want to be careful not to oversell common-carrier treatment: As to some of the platform features that are most valuable to content creators—such as platforms’ recommending certain posts to users who aren’t already subscribed to their authors’ feeds—platforms retain the First Amendment right to choose what to include in those recommendations and what to exclude from them.

And I also don’t want to oversell the label “common carrier.” I think the analogy to certain familiar common carriers, such as phone companies and package delivery services, is helpful; but it’s only an analogy. Even if it proves to be a helpful analogy, there’s little reason to think that all the details of common carrier law ought to be fully adopted for social media platforms, or that the threshold for regulation should be defined by traditional common carrier rules.[12]

Other analogies can also be helpful: As Part II.A will argue, the clearest First Amendment analogs would be cable must-carry rules and rights of access to the real estate of shopping malls and universities.[13] Justice Thomas has recently suggested that public accommodation laws might be useful analogies as well;[14] indeed, some courts have recently treated media web sites as places of public accommodations for purposes of disability law,[15] and laws in some jurisdictions already ban discrimination based on political affiliation or ideology.[16] The point is simply that the insights behind how certain communication and distribution services—and certain forms of property more generally—may and may not be regulated could also be helpful for thinking about various functions of social media platforms.

[1] Assume that it wouldn’t need to open sealed envelopes, because the nature of the material is clear from the identity of the mailer or from the cover of an unwrapped magazine.

[2] See Lamont v. Postmaster General, 381 U.S. 301, 307 (1965).

[3] See, e.g., FedEx Corp. v. United States, 121 F. App’x 125, 126 (6th Cir. 2005).

[4] See 49 U.S.C. § 13101(a)(1)(D) (setting forth general policy against “unreasonable discrimination”), § 14101(a) (requiring common carrier to provide “transportation or service on reasonable request”); Mitchell v. United States, 313 U.S. 80, 94–95 (1941) (interpreting predecessor to this statute as banning race discrimination by common carriers, because such discrimination “would be an invasion of a fundamental individual right” if done by the government). They may sometimes be expected to monitor shipments for illegal content, see, e.g., U.S. Dep’t of Justice, UPS Agrees To Forfeit $40 Million In Payments From Illicit Online Pharmacies For Shipping Services, Mar. 29, 2013, https://ift.tt/3yllE6g, but they can’t block materials simply because they don’t like the ideas expressed within them.

[5] 47 U.S.C. § 202(a); Genevieve Lakier, The Non-First Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2317 (2021); Michael Kent Curtis & Eugene D. Mazo, Campaign Finance and the Ecology of Democratic Speech, 103 Ky. L.J. 529, 557 (2015).

[6] Christopher Yoo, The First Amendment Rights of Common Carriers: Net Neutrality, Privacy, and Beyond (forthcoming 2021), notes cases holding that allowed phone companies some power to block certain uses of their services, chiefly for dial-a-porn. But those all involved statutes that the courts read as specially limiting the common carrier obligation. Carlin Commc’ns, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1293–95 (9th Cir. 1987) (state law “prohibiting the distribution of sexually explicit material to minors,” which was seen as “embod[ying]” a “public policy” of “protecting minors from ‘adult entertainment'”); Carlin Comnc’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1361 n.5 (11th Cir. 1986) (47 U.S.C. § 201 exclusion of the service from common carrier obligations); Network Commc’ns v. Mich. Bell Tel. Co., 703 F. Supp. 1267, 1275 (E.D. Mich. 1989) (same); Info. Providers’ Coal. for Def. of First Amend. v. FCC, 928 F.2d 866, 877 (9th Cir. 1991) (47 U.S.C. §§ 233(b), (c)(1) exclusion of “indecent” communications).

[7] Pacific Gas & Elec. Co. v. Pub. Util. Comm’n, 475 U.S. 1 (1986), so held as to public utilities generally, and there is no reason why this analysis would be different for common carriers.

[8] Cf. Jonathan Zittrain, Engineering an Election, 127 Harv. L. Rev. F. 335 (2014).

[9] Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974).

[10] For earlier examples of calls to treat social media platforms as common carriers, see, e.g., K. Sabeel Rahman, Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities, 2 Geo. L. Tech. Rev. 234 (2018); Adam Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J. L. & Tech. 391, 433 (2020); Tunku Varadarajan (interviewing Richard Epstein), The ‘Common Carrier’ Solution to Social-Media Censorship, Wall St. J., Jan. 15, 2021; Richard Epstein, Should Platforms Be Treated as Common Carriers? It Depends–Perhaps (working paper). For a very early suggestion along those lines, though not aimed at modern social media platforms, see David J. Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public vs. Private in Cyberspace Speech, 69 U. Colo. L. Rev. 1, 40–47 (1998).

[11] See Adam Candeub & Eugene Volokh, Interpreting 47 U.S.C. § 230(c)(2), 1 J. Free Speech L. __ (2021); Eugene Volokh, Does 47 U.S.C. § 230(c)(2) Violate the First Amendment? (in draft); Eugene Volokh, State Social Media Mandates and the Dormant Commerce Clause (in draft).

[12] Social media platforms today aren’t common carriers under some traditional definitions of the term, because they don’t hold themselves out as “neutral conduits of information.” Matthew Feeney, Are Social Media Companies Common Carriers?, Cato Inst. (May 24, 2021, 3:39 pm), https://ift.tt/3ypGQYT; Berin Szóka & Corbin Barthold, Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (Apr. 14, 2021, 10:30 am), https://ift.tt/3qP8wnJ. But cases such as Rumsfeld v. FAIR and Turner Broadcasting v. FCC show that access mandates may be imposed even on institutions—such as universities and cable operators—that are far from neutral conduits in many of their operations (e.g., defining their curriculum, hiring faculty, organizing conferences, or selecting what channels to include) and that may seek to be nonneutral in further ways (say, in selecting who may recruit on campus).

And even an entity that publicly announces that it wants to exclude some people may still be required to include them, whether this is because it’s treated as a common carrier, a public utility, or as subject to a sui generis public access regime—after all, one facet of common carrier status is that the common carrier is barred from discriminating. See, e.g., 47 U.S.C. § 202(a). Common carrier status, for instance, barred railroads from discriminating among passengers based on race, even before such discrimination was expressly forbidden by public accommodations statutes. See, e.g., Mitchell v. United States, 313 U.S. 80, 97 (1941). Likewise, PruneYard was required to allow leafleters even though it had an express “policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes.” PruneYard, 447 U.S. at 77. This was likewise true for the universities in Rumsfeld, and the cable systems in Turner.

Likewise, telephone companies were barred from excluding people based on mere suspicion that they were using the service for illegal purposes, such as gambling. Andrews v. Chesapeake & Potomac Tel. Co., 83 F. Supp. 966, 968–69 (D.D.C. 1949); Nadel v. N.Y. Tel. Co., 170 N.Y.S.2d 95, 98 (N.Y. Sup. Ct. 1957). One rationale for this bar was that, “Public utilities and common carriers are not the censors of public or private morals, nor are they authorized or required to investigate or regulate the public or private conduct of those who seek service at their hands.” Pa. Publications v. Pa. Pub. Util. Comm’n, 36 A.2d 777, 781 (Pa. 1944) (cleaned up); People v. Brophy, 120 P.2d 946, 956 (Cal. App. 1942); Commonwealth v. Western Union Tel. Co., 67 S.W. 59, 60 (Ky. 1901).

[13] See infra Part II.A.1.

[14] Biden v. Knight First Am. Inst. at Columbia Univ., 141 S. Ct. 1220, 1224, 1227 (2021) (Thomas, J., concurring).

[15] See Winegard v. Crain Commc’ns, Inc., No. 20-CV-01509 (AJN), 2021 WL 1198960 (S.D.N.Y. Mar. 30, 2021); Sullivan v. BDG Media, Inc., 71 Misc. 3d 863 (N.Y. Sup. Ct. 2021); Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012); see also Sullivan v. Study.com LLC, No. 18-CV-1939 (JPO), 2019 WL 1299966 (S.D.N.Y. Mar. 21, 2019) (treating such a media site as a place of public accommodation, though in a case where defendant did not contest that proposition). For more on whether web sites that are ancillary to the sale of other goods and services are places of public accommodations for purposes of federal disability discrimination law, see Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1277 (11th Cir. 2021) (saying no); Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905–06 (9th Cir. 2019) (saying yes); Blake E. Reid, Internet Architecture and Disability, 95 Ind. L.J. 591, 597–99 (2020) (summarizing the dispute).

[16] These jurisdictions include D.C., Seattle, Madison, Ann Arbor, Champaign-Urbana, the counties containing Detroit and Ft. Lauderdale, and several other cities, counties, and territories, and possibly also California. See Eugene Volokh, Can Places of Public Accommodation Exclude People Based on Their Politics?, Volokh Conspiracy, Apr. 8, 2021, at 5:46 pm, https://ift.tt/3dHR7b2. Some of the laws ban only discrimination based on party affiliation, but others ban discrimination based on broader political beliefs as well. The main federal public accommodations law, Title II of the Civil Rights Act of 1964, doesn’t currently treat social media platforms as places of public accommodation, Lewis v. Google LLC, No. 20-16073, 2021 WL 1423118, (9th Cir. Apr. 15, 2021), and in any event doesn’t ban discrimination based on ideological belief; but the question would be whether it, and similar laws, should be extended.

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The Supreme Court’s 2005 decision in Kelo v. City of New London, which upheld the use of eminent domain to take homes for transfer to a private developer in order to promote “economic development,” rekindled a two-hundred year long debate over the Takings Clause of the Fifth Amendment. The Amendment mandates that private property must not be “taken for public use, without just compensation.” Nearly all participants in the longstanding debate over the meaning of this phrase have assumed that takings for purposes other than public uses are simply forbidden—even if compensation is paid.

They disagreed over whether the correct interpretation of “public use” is what I have called the “broad view”—under which virtually any potential public benefit qualifies—or the narrow view, under which a public use only exists if the condemned property is transferred to government ownership (as in the case of public infrastructure such as roads) or to a private owner that is legally obligated to serve the entire public.

There is plausible originalist evidence for both sides in this debate. In my book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I describe how the evidence for the narrow view is, overall, much stronger than that backing the broad alternative (see also my brief summary here).

But even if I’m wrong about that, this is still a debate in which both sides admit that “public use” imposes at least some constraints on the range of purposes for which government can condemn private property. Advocates of the broad view admit there can be extreme cases where a taking runs afoul of public use limits. For example, the Kelo majority opinion concedes that “pretextual takings”—condemnations where the official rationale is obviously a smokescreen for a scheme to benefit a private party—are still unconstitutional (though it is extremely unclear about how courts should determine what qualifies as a pretextual condemnation).

In a thoughtful recent post on this issue, co-blogger Jonathan Adler embraces a much more radical defense of the result in Kelo. Rather than defending the broad view of public use, he argues that the term “public use” simply doesn’t constrain takings at all:

The first thing to note is that in the Takings Clause itself, “public use” is not written as a limitation. The text does not read “nor shall private property be taken other than for public use.” Rather it identifies a type of taking—those “for public use”—that require compensation. “Public use” is used to differentiate a subset of takings. It is not written as a requirement or limitation.

Read in the context of the full amendment, this makes sense, for there are all sorts of takings or property for which compensation is not required, including taxes, fines, and seizures. Those takings require due process, but do not require “just compensation.” It is when property is taken for a public purposes (as opposed to as a punishment or as an exaction) that compensation is required. To restate: The text requires Due Process for all takings of property, and then requires compensation for the subset of takings that are “for public use.” Like it or not (and I most definitely do not) this is the most straight-forward reading of the constitutional text, and there is little historical or other evidence to the contrary.

This is not a completely new theory. It has been defended by a few modern legal scholars, most notably in a 1993 article by Jed Rubenfeld. But, despite Jonathan’s assertion to the contrary, there is in fact overwhelming evidence against it. The key point is simply this: No significant jurist or legal commentator in the Founding era embraced it during the Founding era, or for many decades thereafter.  Significantly, nineteenth-century advocates of broad eminent domain power (and court decisions endorsing it) did not advance this theory. They instead argued for the broad view of public use.

If the Rubenfeldian approach were truly in accordance with original meaning, one would expect people at the time to note that and to deploy it as an argument for wide-ranging use of eminent domain. While federal government takings were rare during this period, most state constitutions had public use clauses with identical or similar wording to the federal one. Takings by state and local governments generated extensive public use litigation. Yet the Rubenfeld theory is conspicuous by its absence in this period.

The closest thing we have to a judicial endorsement of the Rubenfeld theory is a belated one Justice John Paul Stevens, the author of the Kelo majority opinion. After he retired from the Court in 2010, Stevens came to realize that his defense of the broad view of public use in Kelo was in part based on what he called an “embarrassing to acknowledge” error in interpretation of precedent. In retirement, Stevens instead shifted to defending Kelo based on a theory similar to Rubenfeld’s. But one retired justice’s view is not much of a legal precedent, and certainly doesn’t tell us anything of use about the original meaning.

In Chapter 2 of The Grasping Hand, I included a critique of Rubenfeld’s theory. Here is an excerpt:

As a purely textual interpretation of the Fifth Amendment, Rubenfeld’s reading is plausible. However, it is at least equally plausible to interpret the text as implicitly assuming that takings for private uses are forbidden, and therefore there is no need to provide compensation for them. That assumption is compatible with the natural law understanding of property rights common at the time of the Founding, which held
that government inherently lacked power to engage in naked transfers of
property “from A to B.”

From the standpoint of originalism, as opposed to pure textualism, Rubenfeld’s argument is weaker still. Without exception, eighteenth- and early nineteenth- century court decisions and statements by the Founders themselves assumed that takings required compensation regardless of whether the property was transferred to government ownership or not….

Allowing government unrestrained authority to transfer property from one private individual to another without even paying compensation also conflicted with the founding generation’s generally strong emphasis on property rights. It seems strange, to say the least, that the Founders would have required compensation for takings needed for even the most essential public uses but no protection at all against takings for even the most blatant private ones.

As Jonathan notes, many originalists argue that the original meaning of the Bill of Rights that binds us today is not that of 1791 (when the first ten amendments were originally enacted), but that of 1868, when the Fourteenth Amendment first made the Bill of Rights applicable to state and local governments (which conduct the vast majority of takings). In this period, we have far more evidence about the original meaning of “public use” than the 1790s. And a large majority of it supports the narrow view. That was the position endorsed by a large majority of state supreme courts during that era, and by most prominent legal treatises. It also best fits with the purposes for which the Framers of the Fourteenth Amendment sought to “incorporate” the Takings Clause against the states. The state-court interpretations of state public use limitations are relevant to the federal one, because almost all involved state constitutional provisions based on the Fifth Amendment, and with similar or identical wording. The reasoning behind them almost always rested on the general nature of “public use,” rather than on considerations specific to a particular state. I discuss these issues in far greater detail in my book.

During the period surrounding 1868, there was still a considerable minority of courts and prominent legal commentators who endorsed the broad definition of “public use.” But the Rubenfeld theory was, once again, conspicuous by its absence.

A number of other considerations also count against the Rubenfeld theory. For example, if “public use” does not constrain the reasons why property may be taken, but merely indicates which takings require compensation, then that leads us to the absurd conclusion that even the most egregious takings for private interests do not require compensation, while takings for even the most important public infrastructure do.

In his post, Jonathan suggests that the phrase “public use” may differentiate one category of taking that requires compensation from others, such as taxes, fines, and seizures, that only require “due process.” But then, as today, taxation and the imposition of fines for lawbreaking were not regarded as takings of property at all. By contrast, seizures unrelated to taxation, fines, or some types of exercise of the “police power,”  generally were regarded as takings of private property, and thus did require compensation. Indeed, one of the purposes of the Takings Clause was to prevent a recurrence of uncompensated seizures of property that had occurred under British colonial rule and during the Revolutionary War.

Jonathan doesn’t totally reject the possibility that the 1868 understanding of “public use” imposes constraints on the eminent domain power. So perhaps there is less disagreement between us than might initially seem to be the case.

There are plausible originalist justifications for Kelo, though I think the originalist evidence on the other side is ultimately much stronger. But the Rubenfeld theory is a weak one, and one radically at odds with the available evidence, and with many decades of precedent.

 

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Here’s “The Man from Snowy River” (1890) by A.B. “Banjo” Paterson (1864-1941). (This is on my YouTube channel, which mostly consists of my Sasha Reads playlist, plus a smattering of law-related songs.) See also a previous Paterson poem I posted, “Clancy of the Overflow”.

There was movement at the station, for the word had passed around
That the colt from Old Regret had got away,
And had joined the wild bush horses — he was worth a thousand pound,
So all the cracks had gathered to the fray.
All the tried and noted riders from the stations near and far
Had mustered at the homestead overnight,
For the bushmen love hard riding where the wild bush horses are,
And the stock-horse snuffs the battle with delight….

For the rest of my “Sasha Reads” playlist, click here. Past poems are:

1. “Ulysses” by Alfred, Lord Tennyson
2. “The Pulley” by George Herbert
3. “Harmonie du soir” (“Evening Harmony”) by Charles Baudelaire (French)
4. “Dirge Without Music” by Edna St. Vincent Millay
5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova (Russian)
7. “The Jumblies” by Edward Lear
8. “The Conqueror Worm” by Edgar Allan Poe
9. “Les Djinns” (“The Jinns”) by Victor Hugo (French)
10. “I Have a Rendezvous with Death” by Alan Seeger
11. “When I Was One-and-Twenty” by A.E. Housman
12. “Узник” (“Uznik”, “The Prisoner” or “The Captive”) by Aleksandr Pushkin (Russian)
13. “God’s Grandeur” by Gerard Manley Hopkins
14. “The Song of Wandering Aengus” by William Butler Yeats
15. “Je crains pas ça tellment” (“I’m not that scard about”) by Raymond Queneau (French)
16. “The Naming of Cats” by T.S. Eliot
17. “The reticent volcano keeps…” by Emily Dickinson
18. “Она” (“Ona”, “She”) by Zinaida Gippius (Russian)
19. “Would I Be Shrived?” by John D. Swain
20. “Evolution” by Langdon Smith
21. “Chanson d’automne” (“Autumn Song”) by Oscar Milosz (French)
22. “love is more thicker than forget” by e.e. cummings
23. “My Three Loves” by Henry S. Leigh
24. “Я мечтою ловил уходящие тени” (“Ia mechtoiu lovil ukhodiashchie teni”, “With my dreams I caught the departing shadows”) by Konstantin Balmont (Russian)
25. “Dane-geld” by Rudyard Kipling
26. “Rules and Regulations” by Lewis Carroll
27. “Vers dorés” (“Golden Lines”) by Gérard de Nerval (French)
28. “So That’s Who I Remind Me Of” by Ogden Nash
29. “The Epic” by Alfred, Lord Tennyson
30. “La chambre double” (“The Double Room”) by Charles Baudelaire (French)
31. “Медный всадник” (“The Bronze Horseman”) by Aleksandr Pushkin (Russian)
32. “Herbst” (“Autumn”) by Rainer Maria Rilke (German)
33. “Romance de la luna, luna” (“Ballad of the Moon Moon”) by Federico García Lorca (Spanish)
34. “The Four Friends” by A.A. Milne
35. “anyone lived in a pretty how town” by e.e. cummings
36. “Листья” (“Leaves”) by Fyodor Tyutchev (Russian)
37. “The Pobble Who Has No Toes” by Edward Lear
38. “The Persian Version” by Robert Graves
39. “Les deux voix” (“The Two Voices”) by Victor Hugo (French)
40. “Lines Written in Dejection” by William Butler Yeats
41. “Loveliest of Trees” by A.E. Housman
42. “Akh, chto-to mne ne veritsia…” (“Oh, somehow I can’t believe…”) by Bulat Okudzhava (Russian)
43. “Alone” by Edgar Allan Poe

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