Social media companies and the case of the co-carrier: a primer

Social media companies and the case of the co-carrier: a primer

Social media companies and the case of the co-carrier: a primer

Perhaps the single most important question regarding the role of government in relation to social media is: Can the largest social media companies be regulated as joint carriers? This question is particularly relevant given two recent decisions of the Federal Courts of Appeals.

If the answer is no, like the eleventh circle is over In a decision passed in May, the largest social media companies are largely free to decide which content and users they allow and block from their platforms. If the answer is yes, then the fifth circle is over In September, the federal and state government has broad power to force the largest social media companies to host content and which users they prefer to block. In other words, if social media companies are organized as co-carriers, they will have much less flexibility and autonomy than they have exercised thus far in performing content moderation.

In this post, I will try to briefly present what I believe are some of the strongest arguments on both sides of this issue. Before doing that, I’ll state my point up front: I believe the First Amendment should prevent government attempts to regulate social media companies as corporate carriers. This is the opinion of many people, including some Federal Court of Appeal judges, Share. But there are also a lot of people – including some Federal Court of Appeal judges And the At least once Supreme Court Justice – who do not believe in this view, and their views are also worth considering.

What is – and what is not – a common vector?

It’s a good idea to start by listing some of the categories of corporate entities that all agree are common carriers: companies that operate railroads, ferries, and telephone systems (including cellular). These companies present themselves to the general public as providers of transportation or communication services. Since they are joint carriers, they must provide these services without discrimination against or in favor of certain people, groups, or content (in the case of communications services).

For example, a railway company cannot refuse to sell a ticket to a potential passenger because it does not agree with the passenger’s political views. A cellular network service provider cannot refuse to provide service to a potential customer because he does not agree with the content of the telephone conversations that the customer is expected to conduct.

By contrast, there is also universal agreement that newspapers are not a common carrier. Its editors are free to determine the topics and language of the articles, and are free to accept or reject articles and editorial proposals based on factors including the views expressed. Indeed, it is the combination of these decisions that creates the identity of the newspaper.

Social media companies do multiple things, not all of which involve discussions about the status of the common carrier. Few would suggest that social media companies are popular carriers when it comes to recommending. Instead, the common carrier question arises regarding decisions to block people or content from social media sites.

Some arguments that social media companies should not be popular carriers

Here are some arguments for people (myself included) who think that social media companies should not be considered common carriers: First, social media companies are private entities with First Amendment rights to decide what content and which users their sites allow. A social media company engages in expressive behavior when it sponsors content on its site through a combination of promotion, suppression, filtering, or removal of posts or users.

Second, in the legislation Section 230 In 1996, Congress realized that the online ecosystem was likely to thrive if companies hosting user-published content censored the content. To promote this activity, Congress has provided in Section 230(c)(2)(a) that providers of “Interactive computer services(which today includes social media companies) is not responsible for “any action taken voluntarily in good faith to restrict access to or availability of material that the Provider or the User considers obscene, indecent, lewd, filthy, excessively violent, harassing, or otherwise objectionable.” Else, whether or not these articles are constitutionally protected. “

Regarding the categories of content enumerated, US law encourages social media companies to do strictly the type of content-based discrimination that is prohibited by public carriers. At the very least, this indicates that Congress did not consider Interactive Computer Services a common carrier. Indeed, Section 230 preempts state legislatures from regulating social media companies as joint carriers.

Third, if the largest social media companies consider common carriers, and as required by Texas social media law covered by the Fifth Circuit decision, to be prevented (subject to certain exceptions) from blocking content based on the user’s “view”, this opens the door to all The kinds of hugely problematic political consequences. Some users may argue that racist speech is merely an expression of a “viewpoint,” and that as a common (in Texas) theme of Texas law, the social media company cannot therefore remove it or take steps to impede its spread. Similar assertions may be made regarding a long list of content that social media companies are keenly interested in blocking, including posts promoting pseudo-medical treatments, Holocaust denial, and so on.

Some arguments that social media companies should be co-vectors

Here are some of the arguments in favor of the idea that social media companies can be organized as shared carriers (warning: I make these arguments, and I don’t agree with them): First, they present themselves to the public to provide a service that enables people to connect with one another. In this respect, it is merely a more recent technological manifestation of communications technologies that previously included the telegraph, landline telephone systems, and cellular networks – all organized as common carriers.

Second, while social media companies have First Amendment rights regarding their speech, they do not have an unrestricted right to suppress the speech of others. In this respect, they are like the telephone company. The telephone company is free to express its opinions on issues it deems important. For example, it could take public positions on proposed legislation that would affect its business. However, it is not free to prevent people from speaking through their networks to express views they do not favor.

Third, Section 230 supports rather than undermines a common carrier rating because it provides a liability shield by ensuring that the words of the users of the social media site are not the words of the company that operates the social media site. Therefore, if the government forces a social media site to host spam, it does not force the company itself to speak, but rather forces the company to refrain from preventing a third party from using its infrastructure to speak.

more deeply

The longer post on this issue will also discuss Supreme Court decisions that private entities such as shopping malls (in Pruneyard vs Robins . Shopping Center 1980), private universities (Rumsfeld vs. Ver in 2006), cable television companies (in Turner Broadcasting System vs. FCCin 1994 And the 1997) to host speakers who would not otherwise choose to convey their messages. Supporters of regulating social media companies as co-carriers argue that these provisions support their position. Opponents argue that they are specialAnd the as such Bronyard And the Rumsfeld Special entity letter was not implicated, and Turner Embedded broadcasting, which is an area where First Amendment protections are lower.

It should also be noted that malls, private universities, and cable companies are not common carriers. That the government was nevertheless able to compel them to host the speakers helps underscore that the case of the common carrier, while important to determine, is not the whole story. First Amendment rights for non-carrier private entities can include shades of gray.

In short, there is a lot more to be said on this issue than can be captured in a short post like this. A more thorough treatment of the justifications for and against the presentation of the largest social media companies as popular carriers, respectively, is provided in Fifth And the eleventh Opinions of the department mentioned above. In addition, my colleague at the University of California, Eugene Voloch, recently published a Law review article On this topic you go into more detail.

I will conclude by reiterating my view that regulating social media companies as co-carriers would conflict with the First Amendment. It would also create a series of problematic consequences, including making many spaces on the Internet more toxic than they are today. But I also realize that these companies and the services they provide don’t quite fit into the traditional categories that made it easy to distinguish who is (eg, phone companies) and not (eg, newspapers) a common carrier.

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