Are Internet companies “common carriers” of content? Courts diverge on key issue


(Reuters) – (NOTE: After the initial publication of this article, the U.S. Supreme Court agreedto temporarily block enforcement of Texas law prohibiting social media giants from moderating content based on users’ views. In a dissent, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, suggested that the issue of public transportation will feature in the court’s final ruling on the law’s constitutionality.)

States that want to impose restrictions or controls on the content offered by social media sites and search engines face a fundamental 1st Amendment hurdle: Internet companies are private enterprises, so in a way Generally, they are entitled to constitutional protection against government interference with their right to freedom of expression.

But not if they fall into a special category of private companies called “common carriers”. Historically, common carriers were companies that sold public transportation services to all comers. In modern times, the definition has expanded to include communications businesses, such as telephone networks. Common carriers, again broadly defined, are subject to more regulation, including non-discrimination rules, than other companies because they dominate the market for an essential public service.

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If social media sites and search engines are common carriers — or could be considered common carriers under state law — then the Florida, Texas, and Ohio legislatures would be empowered to imposing content regulations without passing a rigorous test to justify the restrictions imposed on companies. ‘ 1st Amendment rights. As the United States 11th Circuit Court of Appeals explained last week in NetChoice LLC c. Attorney General, State of Florida“Labelling social media platforms as ‘common carriers'” would allow states to “evade (or at least minimize) First Amendment scrutiny.”

Last week, two courts diverged on whether internet companies facing government regulation on moderation of their content can be considered common carriers. The 11th Circuit said no, mostly upholding a preliminary injunction barring Florida from enforcing a law prohibiting social media giants from restricting users’ political speech. The appeals court denied Florida’s claim dispute that Twitter Inc and Facebook Inc have become such large information pipelines that they are, in effect, utilities.

But a state court judge came to a different conclusion in Ohio. trial for declaratory judgment against Google LLC. Judge James Schuck of the Delaware County Court of Common Pleas partially denied from google motion to dismiss the Ohio Attorney General’s complaint, which alleges that Google search results favor Google products.

Schuck rejected the AG’s assertion that Google is a public utility, but concluded that the complaint correctly alleged that Google was a common carrier of information. It’s not yet clear, the judge said, what obligations Google will assume as a common carrier, but he said the discovery could establish that the state’s interest in fostering competition outweighs the rights of Google’s freedom of expression.

The common carrier issue is currently before the United States Supreme Court, entangled with related 1st Amendment issues regarding state restrictions on social media content moderation. As you may recall (and as I reported earlier this month), two trade groups for giant tech companies filed a emergency request asking the Supreme Court to stop Texas Attorney General Ken Paxton from enforcing a law prohibiting Twitter, Facebook and YouTube from “censoring” content based on users’ views. Like Florida in the case just decided by the 11th Circuit, Texas has argued, including in its Brief of May 18 asking the Supreme Court to allow the law to take effect, that social media sites are common carriers subject to Texas anti-discrimination regulations.

The Supreme Court is expected to rule imminently on the tech groups’ request to delay enforcement until a final ruling on the law’s constitutionality. The 11th Circuit’s decision last week in favor of social media sites – which is apparently at odds with the 5th Circuit sentence order suspending a trial court injunction barring Texas AG from enforcing the law — increases the likelihood that judges will ultimately agree to rule on the merits of tech companies’ 1st Amendment challenges to Texas and Florida statutes.

We already know that at least one judge sympathizes with the states’ arguments. Last year, in a competition with the Supreme Court’s decision not to hear a case raised by Twitter users who sued then-President Donald Trump for blocking them, Justice Clarence Thomas launched the idea that social media platforms , with their concentrated control of information, are akin to regulated telephone networks.

“Similarities between certain digital platforms and common carriers or public accommodations can give lawmakers a strong case for regulating digital platforms in the same way,” Thomas said. And if the analogy holds, he said, then the solution for “dissatisfied” members of the public who think they’ve been banned from these sites is obvious: “laws that restrict the right to be excluded from the platform.” .

That’s exactly what the Texas and Florida laws purport to do, of course, and both states relied on Thomas’s agreement in their appeal submissions. But in last week’s ruling against the Florida law, the 11th Circuit panel — judges Gerald Tjoflat, Ed Carnes and Kevin Newsom — explicitly challenged some of the assumptions underlying the judge’s opinion.

By definition, Newsom wrote in the 11th Circuit decision, common carriers present themselves as serving the public without discrimination. Social media sites don’t. Facebook and Twitter inform users from the moment they sign up that the sites “exercise editorial judgment in curating the content they display and broadcast,” the 11th Circuit said.

Nor can lawmakers simply decree that internet content providers are common carriers just because Twitter and Facebook dominate public conversation, the appeals court said. “In short, because social media platforms exercise – and historically have exercised – inherently expressive editorial judgment, they are not common carriers, and state law cannot compel them to act as such unless that they survive First Amendment scrutiny,” the court held.

The 5th Circuit still hasn’t issued an opinion explaining its decision to lift a preliminary injunction barring the Texas law, so we don’t know if this court finds that social media sites are subject to regulation as carriers. public or simply that the site 1st Amendment rights are not violated by Texas law.

Paul Clement of Kirkland & Ellis, which represents tech trade groups challenging Texas and Florida laws, declined to make a statement. Brian Barnes of Cooper & Kirk, who argued for Florida in the 11th Circuit, said by email that the state “will continue to make these arguments as the case progresses.” Justin Herdman of Jones Day, Google’s attorney in its challenge to the Ohio AG case, did not respond to my email.

Read more:

U.S. Court of Appeals Rejects Most Florida Social Media Laws

If the Supreme Court lets Texas censorship law continue, the internet will become a cesspool. Or not.

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