Are internet companies 'common carriers' of content? Courts diverge on key question – Reuters

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(Reuters) – (NOTE: After this column was originally published, the U.S. Supreme Court agreedto temporarily block enforcement of Texas' law prohibiting social media giants from moderating content based on users' viewpoints. In a dissent, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, hinted that the common carriage issue will figure in the court's ultimate determination of the law's constitutionality.)
States that want to impose restrictions or controls on the content offered by social media sites and search engines have to confront a fundamental 1st Amendment obstacle: Internet companies are private businesses so, broadly speaking, they’re entitled to constitutional protection from government interference with their free speech rights.
But not if they fall into a special category of private businesses known as “common carriers.” Historically, common carriers were companies that sold public transportation services to all comers. In modern times, the definition expanded to include communications companies, like telephone networks. Common carriers, again speaking broadly, are subject to more regulation, including non-discrimination strictures, than other companies because they dominate the market for an essential public service.
If social media sites and search engines are common carriers – or could be deemed common carriers as a matter of state law – then legislatures in Florida, Texas and Ohio would be empowered to impose content regulations without meeting a stringent test to justify restrictions on the companies’ 1st Amendment rights. As the 11th U.S. Circuit Court of Appeals explained last week in NetChoice LLC v. Attorney General, State of Florida, “Labeling social-media platforms ‘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 of their content moderation 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 rejected Florida’s argument that Twitter Inc and Facebook Inc have become such important pipelines of information that they are, in effect, public utilities.
But a state-court judge reached a different conclusion in Ohio’s declaratory judgment lawsuit against Google LLC. Judge James Schuck of the Delaware County Court of Common Pleas partially denied Google’s motion to dismiss the Ohio Attorney General’s complaint, which alleges that Google search results favor Google products.
Schuck rejected the AG’s contention that Google is a public utility but found that the complaint adequately alleged Google to be a common carrier of information. It’s not yet clear, the judge said, what obligations Google will bear as a common carrier, but he said discovery may establish that the state’s interest in fostering competition outweighs Google’s free-speech rights.
The common carrier issue is right now before the U.S. Supreme Court, entangled with related 1st Amendment questions about state restrictions on social media content moderation. As you surely recall (and as I reported earlier this month), two trade groups for giant tech companies have filed an emergency application asking the Supreme Court to block Texas Attorney General Ken Paxton from enforcing a law that bars Twitter, Facebook and YouTube from “censoring” content based on users’ viewpoints. Like Florida in the case just decided by the 11th Circuit, Texas has argued, including in its May 18 brief asking the Supreme Court to allow the law to take effect, that the social media sites are common carriers subject to Texas’s anti-discrimination regulation.
The Supreme Court is expected to rule imminently on the tech groups’ request to delay enforcement until a final adjudication of the law’s constitutionality. The 11th Circuit decision last week in favor of social media sites – which is apparently at odds with the 5th Circuit’s one-sentence order staying a trial court injunction prohibiting the Texas AG from enforcing the law – increases the likelihood that the justices will ultimately agree to decide the merits of the tech companies' 1st Amendment challenges to the Texas and Florida laws.
We already know that at least one justice sympathizes with the states’ arguments. Last year, in a concurrence with the Supreme Court’s decision not to hear a mooted case by Twitter users who sued then-President Donald Trump for blocking them, Justice Clarence Thomas floated the idea that social media platforms, with their concentrated control of information, are akin to regulated telephone networks.
“The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms,” Thomas said. And if the analogy holds, he said, then the solution for "dissatisfied" members of the public who believe they have been excluded from such sites is obvious: "laws that restrict the platform's right to exclude.”
That’s just what the Texas and Florida laws purport to do, of course, and both states have relied on Thomas’ concurrence in their appellate briefing. But in last week’s ruling against Florida’s law, the 11th Circuit panel — Judges Gerald Tjoflat, Ed Carnes and Kevin Newsom — explicitly disputed some of the assumptions underlying the justice’s opinion.
By definition, Newsom wrote in the 11th Circuit ruling, common carriers hold themselves out as serving the public indiscriminately. Social media sites do not. Facebook and Twitter advise users from the moment they sign up that the sites “exercise editorial judgment to curate the content that they display and disseminate,” the 11th Circuit said.
Nor can legislatures 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 have historically exercised — inherently expressive editorial judgment, they aren't common carriers, and a state law can't force them to act as such unless it survives First Amendment scrutiny,” the court held.
The 5th Circuit still hasn’t issued an opinion explaining its decision to lift a preliminary injunction barring Texas’ law, so we don’t know if that court believes social media sites are subject to regulation as common carriers or simply that the sites’ 1st Amendment rights are not violated by the Texas law.
Paul Clement of Kirkland & Ellis, who represents the tech trade groups challenging both the Texas and Florida laws, declined to provide a statement. Brian Barnes of Cooper & Kirk, who argued for Florida at the 11th Circuit, said via email that the state “will continue to press those arguments as the case proceeds.” Justin Herdman of Jones Day, counsel to Google in its challenge to the Ohio AG’s case, did not respond to my email.
Read more:
U.S. appeals court rejects most of Florida social media law
If Supreme Court lets Texas censor law proceed, internet will be a cesspool. Or not.
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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.
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