How to Apply Non-Discrimination to Digital Platforms via Common Carriage

Published May 25, 2021


Social media platforms’ power to control national political discussions and create personalized political echo chambers is unparalleled in our history. From deplatforming President Trump to stifling the New York Post‘s laptop exposé about Hunter Biden before the 2020 election, the content moderation decisions of the dominant Big Tech conglomerates appear to many reasonable observers to be censorship of conservative speech.

To remedy this problem, many have recently been looking to the common law doctrine of common carriage—particularly since Justice Clarence Thomas’s recent concurring opinion that highlighted this possible approach.

But what exactly is common carriage law?

Common carriage refers to an ancient, diffuse set of legal rules that for centuries has ensured that basic economic, transportation and communication channels are open and accessible to all members of society. It reflects a practical approach to the issue of market dominance in industries that provide public goods. Under common carriage, the government gives dominant firms certain privileges, such as immunity from antitrust laws or tort liability and, in exchange, these firms have an obligation to provide their goods and serve all comers in a non-discriminatory way. In this way, common carrier regulation operates as a classic carrots-and-sticks “regulatory bargain.”

Digital platforms that hold themselves out to the public now resemble other traditional common carriers, such as telephone and cable companies. Today, social media companies like Twitter and Facebook provide universal communications platforms, providing individuals and the government the ability to communicate with everyone else. Their dominant market positions now necessitate imposing common carrier obligations on them. And, in fact, these platforms already receive the first half of the common carriage regulatory bargain: Section 230 immunity protections from certain suits related to third-party content and content moderation decisions. Congress gave this carrot in an effort to aid the nascent internet industry back in the 1990s.

But, with the emergence of dominant social media platforms, the absence of a stick to ensure the free and democratic provision of this public good has become increasingly apparent. Section 230 gives Facebook and Twitter the legal immunity that telephones and telegraphs enjoy—but without the corresponding duty to serve all customers in a non-discriminatory manner.

Imposing non-discrimination requirements on Big Tech companies would correct this imbalance and ensure that all Americans enjoy the ability to communicate with each other on equal footing. This could be achieved using the same, straightforward legal language that prohibits discrimination by telephone companies and other common carriers.

Given the complexity of telecommunications law, a common carriage-type solution could be imposed using one of several different legal and regulatory pathways.

Option 1: The Federal Communications Commission (FCC) could regulate social media platforms directly under Title II common carriage requirements. A Democratic-majority FCC is likely to impose Title II non-discrimination network neutrality on broadband access service providers—for example, AT&T and Comcast—but is not likely to impose the same non-discrimination requirements on social media firms and may even preempt states from doing so themselves (see Option 4 below). For conservatives, regulating the internet under Title II would be the wrong approach.

Option 2: Congress could regulate social media platforms by drafting a law such as the 21st Century FREE Speech Act recently introduced by Senator Bill Hagerty (R-TN) or Senator Josh Hawley’s (R-MO) Section 230 bill from last Congress that would require content moderation decisions to be politically unbiased. Hagerty’s legislation posits treating interactive computer service platforms with more than 100 million active monthly users worldwide as common carriers that must provide reasonable, non-discriminatory access to all consumers. Politically, though, a law from Congress that would directly impose common carriage-type anti-discrimination requirements on Big Tech companies is unlikely to pass in the foreseeable future.

Option 3: The FCC could promulgate interpretive rules on Section 230 to regulate social media liability. These rules would provide a much-needed return to the original intent of Section 230, which courts have ignored by greatly expanding the provision’s protection. This approach would be narrowly constrained to clarifying what Section 230 immunity is not—where courts have incorrectly expanded it—and therefore would be unlikely to provide broader, affirmative non-discrimination requirements.

Option 4: States could regulate platforms under their own common carrier authority, as Texas is apparently ready to do. States’ current ability to regulate interstate internet offerings stems from the FCC’s 2018 order to regulate the internet under Title I, not Title II. Courts determined, in upholding Vermont and California’s recent internet non-discrimination laws, that states may regulate the internet in this manner as long as the FCC continues to classify the internet under Title I. The courts reasoned that the FCC Title I classification reflected a retreat from regulation, permitting states a role rather than preempting them. Of course, this option would end if and when the FCC decides to regulate network neutrality under Title II instead.

With any of these four options, regulating via common carriage presents an interesting question for conservatives. Specifically, this approach at least seems on the surface to contradict their long-standing opposition to network neutrality. Many of their objections though, rest on faulty or specious assumptions.

First, some argue that one cannot consistently oppose network neutrality and still seek to impose non-discrimination requirements on social media. However, network neutrality advocates sought to subject broadband service providers to Title II and its public utility model, a burdensome regulatory framework. In contrast, proposals like Hagerty’s apply only one common carriage principle—non-discrimination. This requirement reflects a modest regulatory burden, if one at all. It would simply require platforms to offer a service, which costs next to nothing to provide to the incremental user, to everyone.

Second (and crucially), despite the decades-long network neutrality policy dispute, there have been no examples of widespread discrimination by the nations’ leading broadband providers. On the other hand, few can ignore the clear bias and discrimination on the part of the major Big Tech platforms. And the relevant legal language could be drafted to explicitly not apply the new obligations to broadband internet access service.

Certain businesses—from ferries and telegrams in the 19th century to email and social media in the 21st century—play a central role for meaningful participation in society. As has been done for centuries, our laws must ensure these businesses treat everyone fairly.

Adam Candeub is professor of law at Michigan State University and senior fellow at the Center for Renewing America.

Clare Morell is a policy analyst at the Ethics and Public Policy Center.

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