Will Common Carrier Precedent Might be Applied in New Ways?

Though the notion stands regulation on its head, we might be nearing a point in U.S. regulation of online media and communications--especially the regulation of platforms--that borrows concepts from common carrier regulation. 

It will not be easy, and might require some new developments in legal thinking. But that happens, from time to time, even in a profession that relies so heavily on precedent. 

Past actions that apply free speech obligations to private actors have used an analogy to a public square, though rarely with much success. The issue now is whether the digital public square argument gains currency.  

Simply, most people might agree that the essence of “free speech” on any major platform for social media, content or even search is that anyone may publish at will, as was among the founding principles of the internet itself. 

We might also agree that competition is a better framework than regulation, but also might agree that regulation is an option if all other frameworks prove problematic. 

For perhaps a century, “free speech” and “common carrier” regulation of industries have been defined largely in terms of the rights of “speakers.” For media, free speech has been viewed as a right possessed by owners of printing presses, TV or radio stations, content studios, other print media, cable TV systems and now internet platforms for search, social media and commerce. 

Customers of “utility” services, on the other hand, have generally been seen as the possessors of the “free speech” right, to the extent political speech is involved at all. “Common carrier regulation” has been the rule for railroad, electricity, gas, water and telecom firms, for example. 

A common carrier. must provide its service to anyone willing to pay its fee, but has not generally applied to the media. 

New communication or media formats tend to be regulated using older and existing models. That almost always poses big issues, as new media and communications formats often cannot--or should not--be regulated using older models. 

Live performance, movie theaters, broadcast television and radio, cable TV and streaming video might provide one set of examples. 

Pamphlets, newspapers and magazines, online media and social networks might provide additional examples. Regarding free speech protections, there are several important distinctions. Jurists must decide whether the “right of free speech” is for the speaker or the listener. 

It is complicated. First, the First Amendment protects “owners of publishing assets,” not citizens, from government prohibitions. What is new in the internet era is the power of private entities (platforms) to silence speech, when historically this problem was seen as a potential problem caused only by government entities. 

Among the new questions is which form of regulation best protects political free speech. Ironically, our older notions may be out of date. 

Historically, the right of free speech belongs to the owners of publishing or communication assets: printing presses, content creation entities such as magazines or movie studios, broadcast stations, cable companies and social media, search or other online media firms. 

Other entities--viewed as platforms--have not been held to have “free speech rights” and have been regulated as common carriers. Railroads, electrical utilities, water supply companies and telecommunications firms come to mind. In other words, “communication” or “public utility” networks have not been considered “speakers with First Amendment rights.” 

“Federal law dictates that companies cannot ‘be treated as the publisher or speaker’ of information that they merely distribute,” Thomas says. To be sure, legal precedent does not regard a digital platform as a “common carrier.” But it remains unclear whether this would remain the case if Congress were to pass laws applying some common carrier principles on digital platforms. 

Even when looking solely at the rights of “speakers,” there is a distinction between the rights of business owners “as business owners” and the rights of “speakers on platforms.” In other words, Facebook has the right to advocate in its own interests. 

That, however, is arguably a different matter from the rights of users of its social media platform to express ideas. 

“If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude,” says a ruling by Supreme Court Justice Clarence Thomas. 

 “Historically, at least two legal doctrines limited a company’s right to exclude,” he says. “First, our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers.” 

“Second, governments have limited a company’s right to exclude when that company is a public accommodation,” Thomas notes. “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.”

Historically, that argument has been tough to apply; tougher to extend. But precedents sometimes aer overturned. We might be heading that direction.