Social media, common carriage, and the First Amendment

[This piece has been published in Restoring America to highlight how regulating social media companies as common carriers could violate the First Amendment.]

AEI recently published a thought-provoking
by Professor Richard A. Epstein addressing censorship of conservative viewpoints online. Building on initial comments
offered last year
in the Wall Street Journal, Epstein identifies the problem as a systemic progressive bias among dominant social media companies, coupled with steep barriers to entry that reduce competition as a potential disciplining force in the short term. The solution, he posits, is a common carriage regime that would prevent digital platforms from abusing their positions in ways that distort public debate.

I am sympathetic to Epstein’s concerns. As I’ve
written elsewhere
, social media is a volatile battleground, and any gatekeeper’s perception of particular content is likely to be informed at least subconsciously by one’s priors. While evidence of systemic bias remains unclear, high-profile anecdotal missteps (such as the Hunter Biden laptop story) certainly reinforce conservative grievances. But it’s not clear to me that social media platforms fit the common carriage paradigm, and even if they do, common carriage treatment likely violates the First Amendment.

Epstein argues that common carriage developed as a solution to natural monopolies. Setting aside whether Facebook, Twitter, and the like exercise this kind of market power, Christopher Yoo
has shown
that this historical justification for common carriage treatment is muddled at best. Market power is neither a necessary nor sufficient condition for common carriage treatment. For example, until 1992, cable providers often held exclusive franchises but were statutorily exempt from common carriage treatment, while wireless companies were saddled with common carriage obligations in a competitive market.

Surveying the regulatory history,
the District of Columbia Circuit Court
defined common carriers as companies that hold themselves out to serve the public indiscriminately, without making individual business decisions regarding with whom to deal and on what terms. Under this definition, common carriage is a poor fit for social media. Unlike a telephone company or the postal service, which carry communications between users without regard to the underlying message, social media companies’ terms of service explicitly reserve the right to treat customers differently by moderating individual user content to offer users a personalized, curated experience.

This curation function raises a more significant obstacle to common carrier treatment, however justified: the First Amendment. In
Miami Herald v. Tornillo
, the court recognized that companies engaged in the publication and dissemination of speech possess a First Amendment right of editorial control that protects their judgments about what content to carry and how. Tornillo struck down a Florida right-of-reply statute that required newspapers to carry political candidates’ responses to critical editorials. Like Epstein, Florida argued that compelled access to the platform was necessary to prevent the platform’s bias from distorting public debate. But the court found this insufficient to overcome the newspaper’s First Amendment rights.

The court has not recognized a common carriage exception to this right of editorial control. If anything, Tornillo itself implies the opposite. The court recognized that the newspaper had significant market power over dissemination of political speech, and barriers to entry made alternative distribution unlikely. But it rejected Florida’s argument that this economic reality justified infringing the newspaper’s rights. Epstein correctly notes that earlier cases rejected First Amendment challenges to newspapers’ judgments about employee hiring and to anticompetitive withholding of stories from competitors. But the newspaper still decided what those employees said in print and which stories it would carry.

And this makes sense, as curation is how these platforms compete for user attention. Different platforms draw lines in different places, thereby cultivating different types of communities that appeal to different groups. Facebook aggressively removes pornographic and violent content, Twitter is more permissible but puts questionable content behind warning labels, and other platforms are
free-for-all cesspools
. Through millions of micro-level editorial judgments each day, platforms reveal their values, views, and community standards. In this way, the First Amendment not only protects the companies’ freedom of expression but also allows for richer and more dynamic competition among platforms.

We should be wary of vesting this editorial power in the government instead. Under the
state action doctrine
, the First Amendment prohibits only governmental abridgment of speech. Legislatures and courts have a poor track record when taking it upon themselves to decide which private spaces are “public” enough to be saddled with government-like duties. The
fairness doctrine
illustrated how government-compelled access to platforms could become a tool to reward political allies and punish enemies while chilling the very speech the doctrine was supposed to protect. First Amendment doctrine recognizes private editorial control rights not as an unalloyed good but as the lesser of two evils. In the long run, private regulation of censorship is less threatening than government regulation of censorship. Common carriage is a helpful tool to discipline less competitive markets, but it becomes more complicated when applied to markets for speech.

This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.

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