Published August 5, 2021
Last weekend, we published an essay in the Wall Street Journal arguing that Big Tech services and platforms that function as conduits for the speech of others can constitutionally be subject to state civil-rights statutes barring viewpoint discrimination. One reason for this is that they are akin to common carriers. State antidiscrimination statutes would merely impose a small portion of the common-carrier duties that Big Tech has thus far evaded.
On Monday, Charles Cooke took issue with our argument, claiming that we “want the federal government to superintend websites such as Twitter and Facebook” and that we “are running directly at the First Amendment.” Neither is true.
It shouldn’t be difficult to recognize that an argument for the constitutionality of state antidiscrimination laws is not an argument for federal law, let alone federal administrative control. We want FCC regulation? Or any federal regulation? Who knew!
It also isn’t hard to see the distinction between careful antidiscrimination arguments from the function of common carriers and Cooke’s overstatement that we said “the ‘Big Tech’ firms are common carriers.” Our point is merely that these companies could be treated by statute as common carriers for purposes of applying antidiscrimination principles — a modest point that follows from long-established antidiscrimination precedents. That’s very different from saying that they generally are common carriers, let alone that they should be subjected to standard common-carrier regulation, such as rate-setting.
Does any of this mean that lesser conduits and mere websites would have to be treated as common carriers? Not at all. Cooke claims our argument that “Section 230 already recognizes the tech companies as akin to common carriers” would then “render National Review, the New York Times, the Greenville News, and your crazy aunt’s self-hosted dog-fancying blog as common carriers, too.” But websites typically do not serve as public conduits in the manner of the massive interactive services and social-media platforms. They are not open to the public to post their views, and even when a newspaper or small business opens up its website for comments, they are merely peripheral to the newspaper’s or business’s own speech. So the common-carrier public-function justification that we explain in our article for applying antidiscrimination principles to the Big Tech conduits wouldn’t apply.
Interestingly, Cooke does not deny our point that Section 230(c)(1) distinguishes the social-media conduits from other information providers. Our point is that federal law already draws the distinction between conduits and other speakers and that the Big Tech companies relied on this distinction to secure immunity from liability — a freedom from a significant degree of legal recourse. Does that mean that all websites protected by Section 230(c)(1) could also be subject to state antidiscrimination laws? No; that’s just Cooke’s attempt to make our argument seem nonsensical. As we made abundantly clear, websites are not conduits in the same sense as the Big Tech companies, and Section 230(c)(1) does not show otherwise.
Even if (contrary to law and logic) common-carrier principles applied to small online business websites — as feared by Cooke — this is not to say such businesses would suffer under a state antidiscrimination statute. In fact, the leading bills being considered by the states expressly do not affect businesses with less than many millions of users. A Texas bill on this matter applies only to services and platforms with over 65 million active users in the United States.
Cooke also splices together several of our sentences to attribute to us the view that “America’s ‘Big Tech’ companies . . . have become ‘conduits for information’ that ‘serve the function of a common carrier,’ and they should therefore be subjected to ‘local, state and federal antidiscrimination laws with significant speech consequences.’” But that’s not a quotation. It is a concoction cooked up to suggest that we want the companies to suffer in their speech rights. Our point was merely that “antidiscrimination laws are familiar limits on speech,” that the country has a host of “antidiscrimination laws with significant speech consequences,” and that “courts haven’t held that they violate the First Amendment.” We alluded to these laws simply to show that antidiscrimination laws needn’t be viewed as a threat to the First Amendment, not to say we want speech limits on Big Tech. On the contrary, our main point is that where Big Tech companies serve as conduits, their freedom of speech is not affected.
We shall pass by the other ways Cooke misrepresented our argument. Suffice it to say that he is taking issue with a position that we have not taken. Perhaps that’s his idea of making a forceful case. But it has little to do with what we wrote.
An argument about the limits of the First Amendment is not an argument against the First Amendment. Nobody thinks the First Amendment is unlimited. All sorts of antidiscrimination laws have been upheld as consistent with the First Amendment, and this is most clearly correct concerning common carriers, which serve as conduits for the speech of others. So it is singularly unhelpful to caricature our position as being anti–First Amendment. That misstates not only our position but also the underlying question.
If Charles Cooke and others who wish to defend Big Tech companies from being subject to state antidiscrimination laws want to have their arguments taken seriously, their defenses must take the law seriously — in particular, the wide body of law that recognizes and upholds common-carrier status and antidiscrimination laws.
Philip Hamburger teaches at Columbia Law School and is president of the New Civil Liberties Alliance. Clare Morell is a policy analyst at the Ethics and Public Policy Center, where she works on the Big Tech Project. She worked in the White House Counsel’s Office and the Justice Department during the Trump administration.