Why Common Carrier Doesn’t Make Sense for the Internet - A Defense of Section 230
Section 230 is the component of the Communications Decency Act of 1996 that provides liability protection to websites for content posted on them by their users. It is sometimes referred to as “the 26 words that created the internet” because it enables large platforms such as social media companies to moderate their platforms without being considered a publisher, exempting them from lawsuits over the content they host. If a platform like Facebook was potentially liable for anything a user posted, it would be forced to be extremely censorious to minimize its liability, increasing costs for tech companies, decreasing utility for users, and unleashing a flood of (mostly) unnecessary litigation. While there is significant mainstream support for Section 230, particularly amongst the tech community (many of whom stand to financially benefit from its continued existence), it faces significant scrutiny and criticism from both sides of the aisle, a rare bipartisan point of agreement. However, Democrats and Republicans dislike it for very different reasons, keeping the odds of near-term reform slim. For a further explanation of the political struggle over Section 230, my colleague Kyle Englander wrote an excellent piece explaining Section 230 and its current relevance [1].
Section 230’s list of formidable opponents, from Trump to Biden, recently grew by one very important name: Justice Clarence Thomas. Justice Thomas’s skepticism of the legality of Section 230 isn’t a surprise, as Englander noted in his piece, “Justice Clarence Thomas, following the Court’s October 12, 2020 decision in MalwareBytes Inc., v. Enigma Software Group (2020), expressed interest in hearing a case that would decide whether Section 230 of the Communications Decency Act ‘aligns with the current state of immunity enjoyed by Internet platforms’” [2].
In Biden v. Knight First Amendment Institute at Columbia University (2021), he had a chance to elaborate his legal reasoning regarding the legitimacy of Section 230. The case dealt with “whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies” [3] which originated from Trump’s Twitter usage. The change in Presidential administration rendered the case moot, leading the Supreme Court to order the Second Court’s previous verdict on the matter to be vacated [4].
Justice Roberts used his lone concurring opinion to opine on the state of internet platforms vis-à-vis free speech. He reviews and agrees with the long-standing legal tradition that “whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space,” thus enabling private companies like Twitter to fully control their platform’s content without First Amendment restrictions. However, in the absence of free speech protection such as the First Amendment, he believes that the current state of law surrounding digital platforms is inadequate: “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” In his concurrence, which one could uncharitably describe as pre-emptive judicial activism, Roberts lays out how “the solution may be found in doctrines that limit the right of a private company to exclude” [5]. This exclusion refers to companies excluding individual users or specific content by the users from their platform by means of bans or other restrictions.
Thomas, in searching for a doctrine to limit exclusion by online platforms, took up an idea generally considered to be a relatively fringe concept “not shared by federal regulatory agencies and the Supreme Court's own precedents” [6] by making the case for equating the role of the internet to a “common carrier.” Common carriers are businesses that, for reasons connected to serving the public interest, are obligated to serve all customers (modern examples include broadband and SMS text messaging) [7]. This is known as the “must-carry” requirement. Thomas argues that “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.” His reasoning includes an emphasis on the concentrated market share of just a few tech companies and thus the high impact an exclusionary effect by such a platform creates, such as the “cataclysmic” consequences that delisting a book on Amazon has on its sales given the lack of alternative marketplaces. To further build his case for deeming digital platforms common carriers, he notes that in the past, State and Federal governments have sometimes given special privileges to common carriers, such as immunity from “‘certain types of suits’” (exactly what Section 230 does), implying that if the government gives common carrier like privileges to a platform they must also bear a corresponding regulatory burden in exchange for it. In a similar vein, he builds an argument that even if common carrier status isn’t correct for digital platforms that they bear a resemblance to “place of public accommodation” (although he concedes that courts have been divided in extending this classification to non-physical locations). This classification, according to Roberts, “might strengthen the argument that an account is truly government-controlled and creates a public forum,” [8] but his argument for public accommodation seems more like a halfhearted attempt to look for another angle to restrict technology companies than to truly elucidate how the law applies.
After building the case for applying these two classifications to internet platforms, he transitions to how this relates to legislation, noting that these classifications give stronger justification for passing regulations and directly decrying that Section 230’s immunity comes without “corresponding responsibilities, like non-discrimination” [9].
The task of balancing free speech online with content moderation is not easy; the difficult nature of online content moderation was the original source of the balance at the core of Section 230. Common carrier status is only one variant of the “must-carry” requirement, but as one of the primary ones advocated by Justice Roberts in his opinion, it is worth considering in further detail. Free speech advocates make fair points about the risks of a few concentrated companies being able to make decisions regarding which ideas are acceptable to censor, but the classification of internet platforms as a common carrier by legislation or judicial recognition would be an unmitigated disaster and is ungrounded in a sophisticated understanding of how its effects would play out.
As John Bergmayer writing for publicknowledge.org puts it, the variety of various conditions and nuances inherent to technological regulation and the existence of different regulatory classification schema makes it so that “there is ... no legal machinery where you name a service, turn the crank, and spit out an answer as to how it should be regulated.” [10] The debate is not between common carrier status or giving the tech companies free rein to dictate acceptable content; this is a false dichotomy between a bad policy and doing nothing when, in reality, the range of acceptable regulatory schemes includes many different levels of scrutiny and restriction; for example, cable TV channels, Bergmayer notes, are subject to some restriction on commercial discrimination “but do not have to make their channel capacity available to all, as they would under a common carriage regime.” [11] The “must-carry” requirement essentially implies a wholly unmoderated network other than removing content that would be outright illegal. Total lack of moderation drags down a network to its lowest common denominator: the loudest most shocking voices will dominate and sow division, hatred, and vitriol, which as Bergmayer points out, actually reduces free expression by driving away the general public. Bergmayer also points out that the ACLU, a bastion of defending free speech even if it means defending a Nazi parade [12], also implicitly disagrees with the principle of common carrier being applied to the web by supporting internet platforms being able to make content moderation decisions [13].
Fortunately, Justice Roberts’s opinions seem unlikely to gain significant traction within the judiciary branch based on the lack of justices joining him on his concurring opinion and, more importantly, the denial of writ of certiorari in recent cases relating to Section 230 [14]. Jeff Kosseff, the lawyer who wrote the definitive book about Section 230, observes that the effects of Robert’s opinion will be likely limited to marginally increasing the probability of a lower court judge ruling in favor of “must-carry” for internet platforms. The effects of such rulings are unlikely to be significant in the overall battle over speech freedom online and content moderation, one that will no doubt continue in the public and political square. This topic highlights the inherent difficulty of applying old rules and concepts to the rapidly changing and increasingly pervasive expansion of technology into every sphere of society and daily life. From highly technical questions such as those raised in Google v. Oracle about the fair use shareability of code, to questions over patenting our very genes raised in Association for Molecular Pathology v. Myriad Genetics, the Supreme Court is forced to be on the cutting edge of complex technical issues that may be better resolved by robust legislative or regulatory guidance responses.
References
[1] Englander, Kyle. “What Is Section 230 And Why Does It Matter?” Harvard Undergraduate Law Review. Harvard Undergraduate Law Review, April 1, 2021. https://hulr.org/spring-2021/what-is-section-230-and-why-does-it-matter?rq=section+230.
[2] Ibid.
[3] Hamm, Andrew. “Biden v. Knight First Amendment Institute.” SCOTUSblog. Accessed April 26, 2021. https://www.scotusblog.com/case-files/cases/biden-v-knight-first-amendment-institute/.
[4] 593 U. S. JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET AL. v. KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, ET AL. (2021)
[5] See citation #4
[6] Allyn, Bobby. “Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech'.” NPR. NPR, April 5, 2021. https://www.npr.org/2021/04/05/984440891/justice-clarence-thomas-takes-aims-at-tech-and-its-power-to-cut-off-speech.
[7] Bergmayer, John. “What Makes a Common Carrier, and What Doesn't.” Public Knowledge, January 14, 2021. https://www.publicknowledge.org/blog/what-makes-a-common-carrier-and-what-doesnt/.
[8] See citation #4
[9] Ibid.
[10] See citation #7
[11] Ibid.
[12] “ACLU History: Taking a Stand for Free Speech in Skokie.” American Civil Liberties Union, September 1, 2010. https://www.aclu.org/other/aclu-history-taking-stand-free-speech-skokie.
[13] “ACLU News & Commentary.” American Civil Liberties Union. Accessed April 26, 2021. https://www.aclu.org/news/free-speech/dear-congress-platform-accountability-should-not-threaten-online-expression/.
[14] See citation #6