Publisher or Platform? Or Both?

Some issues--including network neutrality and regulation of publishers and platforms--are nettlesome and complicated, as much as we might prefer absolute simplicity. In part, that is because new platforms and industries do not conform neatly to our prior models. 

Platforms might be likened to common carrier products: all users are treated the same way, at standard prices, terms and conditions. The platform makes publishing possible, as formal common carrier networks simply “transport” products, but do not exercise editorial control, as do publishers of newspapers, for example. 

But big content platforms no longer operate as pure platforms. They also exercise content moderation and make choices about what gets published, under the guise of community moderation. That makes them publishers more akin to newspapers or magazines. 

That is why the debate over Section 230 of the Communications Decency Act is important.  Title V of the Telecommunications Act of 1996 was intended to protect platforms from content posted by platform users, exempting the platforms from laws pertaining to other publishers. On the other hand, platforms claim the right to censor and remove content under the rubric of community standards. 

But there arguably is a crucial difference between “offensive” speech and “political” speech. Most people might agree that bans on obscenity or violence are one thing, but restrictions on clearly political speech are questionable. 

Nor is it easy to apply First Amendment protected speech rules, which classically protect speakers from government restrictions, not listeners and readers from private company restrictions. 

On the other hand, “while the First Amendment generally does not apply to private companies, the Supreme Court has held it ‘does not disable the government from taking steps to ensure that private interests not restrict’ . . . the free flow of information and ideas,”  say Adam Candeub, law professor at Michigan State University, and Mark Epstein, antitrust attorney. 

We do not yet have good models for regulating such hybrid industries. But that is likely to change, as regulation changed with the emergence of over the air broadcasting and then cable TV, with a hybrid model not fully in the realm of either common carrier nor unregulated publishing. 

As platforms become a mix of content delivery (platform) and curated and created speech (publisher), some new hybrid form of regulation is likely to emerge and evolve, given a government interest in fostering open and fair debate where it comes to political speech. That was the approach taken with broadcasting, for example.