Journal of Free Speech Law: "Why Social Media Platforms Are Not Common Carriers," by Prof. Ash Bhagwat (UC Davis)
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Just published at 2 J. Free Speech L. 127 (2022), as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the Abstract: In a recent opinion respecting denial of certiorari, Justice Clarence Thomas expressed concerns about the degree of control that a handful of social media platforms exercised over political discourse, and suggested common carrier regulation as a potential solution to this perceived problem. The States of Florida and Texas promptly adopted legislation restricting social media companies' ability to control content and users on their platforms, explicitly citing the common carrier concept in support. In this paper, I argue that even under Justice Thomas's (probably incorrect) definition of common carriage, and certainly under the traditional definition, platforms simply are not common carriers. They do not possess any of the characteristics that Justice Thomas himself cited as typical of common carriers; and, more fundamentally, they lack the necessary characteristic—indifference to the content they carry—that is typical of communications common carriers.
Journal of Free Speech Law: "Why Social Media Platforms Are Not Common Carriers," by Prof. Ash Bhagwat (UC Davis)
Journal of Free Speech Law: "Why Social Media…
Journal of Free Speech Law: "Why Social Media Platforms Are Not Common Carriers," by Prof. Ash Bhagwat (UC Davis)
Just published at 2 J. Free Speech L. 127 (2022), as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the Abstract: In a recent opinion respecting denial of certiorari, Justice Clarence Thomas expressed concerns about the degree of control that a handful of social media platforms exercised over political discourse, and suggested common carrier regulation as a potential solution to this perceived problem. The States of Florida and Texas promptly adopted legislation restricting social media companies' ability to control content and users on their platforms, explicitly citing the common carrier concept in support. In this paper, I argue that even under Justice Thomas's (probably incorrect) definition of common carriage, and certainly under the traditional definition, platforms simply are not common carriers. They do not possess any of the characteristics that Justice Thomas himself cited as typical of common carriers; and, more fundamentally, they lack the necessary characteristic—indifference to the content they carry—that is typical of communications common carriers.