During Donald Trump’s presidency, many Republican lawmakers and conservative activists took steps to address perceived anti-conservative bias in “Big Tech.” The most prominent of these efforts fit into two categories: proposed amendments to Section 230 and executive branch action. More recently, legal scholars, policy analysts, and one Supreme Court justice have considered a third option—common carriage regulation—as a means to force prominent social media companies to host more speech. Such an approach would require these social media companies to treat all legal content equally and refrain from discrimination. Common carriage proposals should be of particular interest to libertarians, as the commentary surrounding it reveals a potential split in the libertarian and conservative treatment of government regulation of speech.
Conservative calls for common carriage may be more common these days because of the numerous unsuccessful attempts to amend Section 230 and the failure of President Trump’s largely performative executive order seeking to hamper how social media companies moderate content. Although often discussed in the debates surrounding online speech, Section 230 is not the law that allows private companies to remove content; the First Amendment is. Fortunately, the First Amendment remains a stubborn barrier for those seeking to force private companies to host speech.
Common carriage regulation would, some argue, sidestep constitutional protections and force social media companies to host speech they have so far removed. This is thanks to the obligations developed over hundreds of years of Anglo-American common law on services that hold themselves out to the public to carry goods or people for a fee (e.g railroads, telecommunication services, airlines, etc.). Such services are classified as “common carriers.” Regulators and lawmakers often justify common carrier regulation on “natural monopoly” grounds. However, not all common carriers are monopolies. Public buses, for example, are considered common carriers not in virtue of being monopolies but because of the nature of how they operate.
Common carriers are prohibited from discriminating against lawful goods or communications. A telecommunications company cannot treat calls from white supremacists differently from calls from a vegan, a communist, or a flat Earther. A ferry cannot deny passage to a paying customer waiting on the wharf.
Recently, some libertarian legal theorists have expressed an interest in regulating social media companies like common carriers, including Richard Epstein, a Cato Institute adjunct scholar and law professor at New York University. In an interview with The Wall Street Journal, Epstein noted that Twitter’s and Facebook’s “near-monopoly position” may impose common carriage obligations:
In Mr. Epstein’s view, the near-monopoly position of Twitter and Facebook may generate common-carrier obligations. “These are common-law rules,” he says. “It’s not as though you can post a little notice on top of your website that says, ‘Not subject to common-carrier rules.’”
However, elsewhere in the interview, Epstein mentions that whether Twitter and Facebook are monopolies is not “an easy question.” This is a curious statement given that Facebook and Twitter compete with each other. Facebook and Twitter sell digital advertising. They compete with each other and others in the digital ad market. In order to make themselves more attractive to digital advertisers they have to compete for users, taking steps to make themselves the best place for those seeking public discussions and networks of like-minded peers.
Shortly after Facebook’s Oversight Board issued its decision to uphold Facebook’s ban of Donald Trump’s account UCLA law professor Eugene Volokh noted:
[H]istorically newspapers and other publishers have had substantial power over public debate, and I think they have the First Amendment rights [to decide] what to print in their pages. But I think (more on that in later posts) that, when it comes to their decisions about what to host, Facebook, Twitter, and Google’s YouTube should be treated more like phone companies, who don’t have such a right.
I look forward to Prof. Volokh’s future posts on the subject (he has already posted an interesting discussion on this topic on the Volokh Conspiracy that I recommend you watch). Perhaps he has a persuasive argument for why social media companies should be treated like common carriers, but as things stand this sounds like an inappropriate comparison. The telecommunications company you pay provides the only transportation of calls from your cell phone to another, and it treats all such calls equally. Facebook, Twitter, and the Google-owned YouTube are among many, many options available to those seeking to connect with others on the Internet’s infrastructure. Social media companies are not analogous to common carrier infrastructure such as a railroad. It is more accurate to think of these companies as only some of the stops among millions on the Internet’s rail network.
The common carriage approach to common carriers is not reserved to academia. Justice Clarence Thomas explored the approach in his solo concurrence in Biden v. Knight First Amendment Institute at Columbia University (2021). Referring to common carrier regulation, Justice Thomas wrote:
In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way.
But this analogy does not work. One of the critical features of common carriers is that they hold themselves out to the public as neutral conduits, treating all communications or goods the same. The largest social media companies make it explicit in their content moderation rules that they do not treat all content equally.
Far from being neutral conduits of information, Facebook, Twitter, YouTube, Tumblr, TikTok, and many other social media sites take steps to promote content their users find interesting and remove content that offends them. They may sometimes add commentary. Such practices became increasingly prominent during the last presidential election and the ongoing COVID-19 pandemic, with “Big Tech” social media companies attaching fact-checking labels to content (e.g. Twitter’s fact check labels on some of former President Trump’s tweets) or providing more information about sources (e.g. YouTube’s news source descriptions).
Justice Thomas’s concurrence also draws an inappropriate comparison between telephone company wires and social media infrastructure similar to Prof. Volokh’s comments.
Common carriage regulations are often justified on monopoly grounds. Unfortunately, much of Justice Thomas’s analysis rests on a misunderstanding of the relevant market similar to that expressed by Epstein. Justice Thomas writes:
Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.
It is correct to note that Google’s value is contingent on network effects, but it is misleading to suggest that Google competes in a market for search. Google does not sell search. It competes with many other companies, including Facebook and Twitter in the digital ads market. Justice Thomas is incorrect that prominent digital platforms have “no comparable competitors.” They compete with each other. Google’s way of attracting users and thus ad dollars is to provide excellent search tools.
Calls for Section 230 reform and common carrier regulation did not emerge from nowhere. There is a widespread mistrust of household-name social media companies among many American conservatives, who allege that Big Tech is institutionally biased against conservatives and seeking to stifle their content. It might not be the case that Google, Facebook, and Twitter are monopolies, but that doesn’t diminish their cultural influence. “Google” is a verb, and if Facebook was a country it would be the most populous. Twitter, though nowhere near as popular as Facebook, is a platform popular with journalists, politicians, and policy professionals and others working in elite institutions. These companies play a significant role in modern American life. To deny that would be naive.
But concerns about the current dominance of Big Tech ought not to prompt calls for common carriage regulation. Aside from being a category error, treating companies such as Facebook and YouTube as common carriers would create a service most users would find repellent or unusable as legal but awful speech (e.g. violent or racist images) and spam were treated just like any other content.
Perhaps an argument for common carrier regulation is more persuasive deeper in “the stack,” with web hosting services such as AWS, Cloudflare, GoDaddy and others facing common carrier obligations. These services have halted access to websites before, with Cloudflare pulling support for the white supemacist forum The Daily Stormer after the Unite the Right rally in 2017, AWS booting Parler in the wake of the January 6th riot at the Capitol earlier this year, and GoDaddy ceasing its relationship with social media site Gab — a Twitter alternative popular with the far-right — after the 2018 shooting at the Tree of Life Synagogue in Pittsburgh. Yet in each of these cases the website in question found support from other web hosts.
Justifying regulating web hosting services as common carriers on monopoly grounds seems like a clear non-starter. However, those seeking to ensure that private companies are obliged to host sites such as The Daily Stormer may find their audiences more receptive by focusing on web hosts and not edge providers such as Facebook and Google. I am not convinced common carrier regulation is appropriate for either, but my guess is that many view web hosting services as much more like a railroad or airline than Facebook and Google are.
Fortunately, the Internet is larger than the Silicon Valley giants. Mastodon, LBRY, and the InterPlanetary File System, are just a few examples of projects experimenting with different ways to share content across networks by embracing decentralization. “Woke” capital critics Peter Thiel and J.D. Vance have invested millions of dollars in alternative video-hosting platform Rumble. Those seeking to dethrone Big Tech should look to competition, not government regulation.
*This post has been updated to reflect that common carrier regulations do not govern text messages.
