Planes, trains, and…Facebook?
The debate around whether government should regulate social media platforms centers on whether these companies are “common carriers”—that is, “a person or a commercial enterprise that transports passengers or goods for a fee and establishes that their service is open to the general public.” Historically, in American law, examples of this are railroads, airlines, ferries, taxis, telecom systems, etc. Companies like this are common carriers because they must provide their services to the public without discrimination based on political or religious views.
So, for example, a telephone company can’t refuse service to a libertarian, or a flat-earther, or a Biden supporter, or a Taylor Swift fan—or a college student who is all the above while trying to find themselves.
Many today want to apply this label to social media platforms, and in the case of the bills Florida and Texas brought against these companies—those containing 50 million or more users. Clarence Thomas, discussing this, 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.”
The issue with this, writes Matthew Feeney from the Cato Institute, is that, “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…[these platforms] take steps to promote content their users find interesting and remove content that offends them.”
Moreover, there’s the whole First Amendment thing, that allows social media platforms—private companies—to promote or reject content as they see fit. The two arguments above have been what most people opposing regulation have used.
There’s now a third interesting argument entering the debate. The Center for Growth and Opportunity at Utah State recently published an article that can add to the discussion. “The core of common carriage,” the authors note in the article, “is a ‘guarantee that no customer seeking service upon reasonable demand, willing and able to pay the established price, however set, would be denied lawful use of the service or would otherwise be discriminated against.’’
They go on to say, “Common carriage was always about mandating equality of access. Prices can be arbitrarily high, but so long as they are the same for everyone, common carriage has been met.” They note, at its core, it was always an economic regulation, where people paid a “clearly defined price.”
They then apply this principle to social media companies. While they do not have an explicit “price” to use their platforms when it comes to speech, they do have a product produced from a market process—and that product is content. And common carriage laws never applied to product quality, which is what calls to make sure social media platforms exclude or endorse specific content essentially is: product regulation.
We know that content is what drives people to their websites and keeps them on their site—content people produce is what they sell back to people. Therefore, to moderate content is to essentially moderate product quality. And to moderate the quality of a product is not common carriage regulation; that’s product quality regulation, as the algorithms curate to produce a product for the consumer.
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