Social Media Common Carriage Would Harm Liberal Democracy
Next month, I will be heading to Colgate University to debate Adam Candeub, a law professor at Michigan State who served in a number of roles in the Trump administration. The debate is titled: “Big Tech & Liberal Democracy: Freedom and Responsibility in the Digital Age.” Candeub and I will be debating the following proposition: “To serve the ends of America’s liberal constitutional democracy, the liability protection of Section 230, as applied to dominant internet platforms (Big Tech), should be coupled with the requirement that these firms not discriminate on the basis of content or the identity of the user.” I am looking forward to the debate, as it will present me with the opportunity to explore ideas I have been pondering recently with one of the smartest of the “Big Tech” critics. At the risk of sharing my hand early, I thought I would take the opportunity to put some of my thoughts on paper (so to speak). Please feel free to send me comments, edits, suggestions, etc. at matthewfeeney@protonmail.com.
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Section 230’s liability shield for the largest internet platforms such as Facebook and YouTube (owned by Google) should not be contingent on viewpoint neutral content moderation. Such a policy rests on weak conceptual grounds, would result in an unwieldy and unusable forums for online speech, and be anti-competitive. The resulting online environment would be harmful to America’s liberal constitutional democracy.
Liberalism is a political innovation that results in fewer vectors of conflict over competing values. These values are associated with a wide range of matters of concern. All over the planet human beings worry about, debate, and discuss religion, work, family, diet, politics, science, education, and much more. In a liberal society, disagreements over spiritual commitment, family structure, curricula, and the best diet are not settled by the state via government mandates or dicta. Rather, these disagreements are settled and explored in non-government institutions such as the newspapers, religious organizations, academia, families, non-profits, book publishers, and film studios. This is in contrast to a totalitarian society, where the state is totalizing; reaching into each and every private matter of concern.
Liberal societies do not withdraw the state completely from such matters. Even in comparatively liberal and tolerant societies governments pass laws regulating employment, education, food preparation, marriage, etc. Nonetheless, in these societies the state is at an arm’s length of involvement compared to what we see in totalitarian societies. In North Korea, to take the most extreme contemporary example, the state manages and regulates every feature of North Koreans’ lives.
It is increasingly clear that so-called “Big Tech” social media firms such as Facebook, YouTube, and Twitter are considered by many Americans to be among the most important non-government institutions where people debate, discuss, and share thoughts on matters of concern. Not only can individuals post their own thoughts on Facebook, but other institutions such as religious organizations, charities, and news organizations use Facebook to increase the size of their audiences. Facebook is particularly prominent, with almost 70 percent of Americans using the platform.
The influence of prominent social media firms has prompted calls for reforms across the political spectrum. In broad and general terms, the political left is concerned about these firms leaving too much content up, and the political right is concerned about these firms taking too much content down. The right’s concerns are grounded in a belief that Big Tech companies are implementing their content moderation rules in a manner that is biased against conservatives.
Concerns about anti-conservative bias have motivated some Republicans to call for amending Section 230 of the Communications Decency Act, a 1996 law that shields interactive computer services from liability for the vast majority of third party content. Although a prominent feature of ongoing “Big Tech” debates, Section 230 is not the law that allows Facebook, Twitter, and any other interactive computer service to remove content. The First Amendment protects private companies from government interference in decisions associated with what speech to carry or block. The government cannot force Facebook, a newspaper, a cinema, or a bodega to advertise a book. Nor can it prohibit such organizations and businesses from posting their own content.
However, over hundreds of years the common law has developed obligations on a narrow category of business that transport goods or people such that they must provide service to anyone seeking their service. Traditional examples include railways and the post office. More modern examples include airplanes and phone companies, which must treat all calls (though not text messages) equally. In the last few years there have been a number of proposals suggesting that social media companies be subject to common carriage requirements. The specific debate proposition focuses on using Section 230 as a carrot, with its protections only applying to prominent social media sites if they do not discriminate on the basis of content or the identity of the content creator.
Seeking to regulate social media firms as common carriers relies on a conceptual misunderstanding. Traditional common carriers, such as railroads and airplanes must treat what they are carrying equally, without discrimination. If two newspaper readers submit letters to the editor via traditional mail the post office, railway, and other common carriers carrying the letters must treat both letters equally, regardless of the contents of the letters. Once the letters arrive at the newspaper, the newspaper’s editorial team is free to decide whether to publish the submissions or not.
In his Biden v. Knight First Amendment Institute at Columbia University (2021) concurrence Justice Thomas wrote the following:
“Though digital instead of physical, [digital platforms] are at bottom communications networks, and they “carry” information from one user to another.”
This is not true. Digital platforms rely on internet infrastructure, which connects devices to servers associated digital platforms. When I compose a tweet, the internet infrastructure, not Twitter, carries that content in digital form to Twitter’s servers. Twitter, Facebook, YouTube, and every other platform are more analogous to newspapers with street addresses, not the post office carrying information to the newspapers.
Digital platforms are also like newspapers in that they have content guidelines. These vary depending on the mission, business model, and culture of the platform. Some platforms, especially those that cater to specific communities, may aggressively police content that is irrelevant or offensive. Others, such as the infamous 4chan and 8kun (formerly 8chan), market themselves as free speech theme parks, where the vast majority of legal speech is permitted so long as it is on the correct board. Prominent social media firms such as Facebook and YouTube present themselves as broadly tolerant platforms for speech, although there remains a wide array of legal speech they prohibit or restrict to adult viewers. These different digital platforms are not carrying information for or between one another.
Justice Thomas also betrays a misunderstanding of the markets where the most prominent digital platforms compete, writing:
“The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search — at 90% of the market share — is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies.”
Google does not sell “search” and is not in the search market. No one reading this post has ever received a bill from Google charging them for searches. Google, Facebook, Amazon, Apple, and many other “Big Tech” firms compete in a wide range of markets, including operating systems, smart speakers, cloud computing, wearables, and more. Social media companies such as Facebook, YouTube, and Twitter compete with each other in the digital advertising market.
It is true that the value of social media networks increases as the number of users grows, but this is neither a necessary nor sufficient condition for treating these companies as if they are common carriers. Facebook displaced Myspace, despite its network effects, while Google+ couldn’t beat Facebook, despite Google’s far greater resources. The internet is exceptional, but social media markets are not.
If common carriage regulations were applied to Big Tech platforms these platforms would quickly become unusable. These platforms would be unable to filter violent but legal content (e.g. images and videos of beheadings, animal torture, child torture, etc.), nuisance content (e.g. spam), or content many social media users find objectionable (e.g. pornography, gun promotion, self harm videos, etc.). It is possible that in such an environment users would be able to opt into an API associated with trusted entities, but such an environment would be one that increases the amount of work required by users, who would be constantly shopping for different content moderation policies all while trying to share and create content amid a changing network of users also doing the same. Such an environment would also prompt advertisers to pull their support for the platform. Common carriage obligations would result in Big Tech platforms being unmanageable, inefficient, and unprofitable.
But even if common carriage regulations were applied and they did not result in Big Tech firms becoming host to unprofitable platforms awash with violent content and spam they would still be anticompetitive.
The debate proposition specifically mentions “dominant internet platforms.” How could “dominance” be defined? Sen. Hawley’s “Ending Support for Internet Censorship Act” defines covered firms as interactive computer services that in a 12 month period “had more than 30,000,000 active monthly users in the United States,” “had more than 300,000,000 active monthly users worldwide,” or “had more than $500,000,000 in global annual revenue.”
Such definitions cover much more than Big Tech social media platforms. Wikipedia, to pick one example, is one of the most popular websites in the world. It has more than 300 million active monthly users across the globe. Wikipedia would be unusable if it was compelled to carry all legal third party speech.
In a world where Section 230 protections for Big Tech firms are contingent on must-carry regulations Wikipedia would have an incentive to cap its number of users. Firms in this world competing with market incumbents would have an incentive to sell to Big Tech as they grow. Once a company competing with Facebook approaches the user or revenue threshold at which it risks losing Section 230 protections selling to Facebook looks increasingly attractive.
America’s liberal constitutional democracy is best served when Americans can find and contribute to communities consistent with their values and beliefs and have opportunities to discover new ideas. Making Section 230’s protection for Big Tech platforms contingent on an obligation to carry all legal content would result in unwieldy platforms and an anti-competitive online speech environment, neither of which would serve America’s liberal constitutional democracy.
