Regulatory Implications of Turning Internet Platforms into Common Carriers.

• Author: Spiwak, Lawrence J.
• Date: 01 January 2024

TABLE OF CONTENTS
                I. INTRODUCTION 2
                II. COMMON CARRIAGE AS A POTENTIAL END-RUN AROUND FIRST
                AMENDMENT CONSTRAINTS 4
                III. ARE INTERNET PLATFORMS REALLY LIKE TELEPHONE COMPANIES
                A REVIEW OF THE PROMINENT ACADEMIC LITERATURE 7
                A. Professor Adam Candeub 7
                1. Summary of Candeub's Regulatory Arguments 7
                a. Net Neutrality 8
                b. Cable Regulation 9
                c. Broadcast Regulation 9
                2. Discussion 9
                B. Professor Eugene Volokh 19
                1. Summary of Volokh's Regulatory Arguments 20
                2. Discussion 22
                IV. RELEVANT CASES 23
                A. Justice Thomas's Concurrence in Biden v. Knight First
                Amendment Institute at Columbia University 23
                B. NetChoice, LLC v. Attorney General of Florida 24
                C. NetChoice, LLC v. Paxton 27
                D. Discussion 28
                V. REGULATORY IMPLICATIONS OF CLASSIFYING INTERNET PLATFORMS
                AS COMMON CARRIERS 30
                VI. CONCLUSION 34
                

I. INTRODUCTION

The debate over how Internet platforms moderate content has reached a fever pitch. Congress is conducting oversight on so-called "Big Tech censorship," and states such as Texas and Florida have enacted laws designed to prevent Internet platforms from "silencing opposing voices." But while such legislative efforts are popular among certain political constituencies, the constitutional and practical implications of regulating Internet platforms' content moderation practices are less than clear.

The basic problem plaguing these efforts is that the First Amendment prohibits the government from controlling the speech of private actors. To get around this constitutional constraint, some argue that Internet platforms should be regulated as "common carriers"--that is, Internet platforms should be legally obligated to serve all comers without discrimination. (1) But while it is easy to propose an idea in the abstract, it is more difficult--yet crucial--to spell out how such a regulatory regime would work in practice. For example, is this vision of common carriage something akin to general public accommodation laws that are enforced by the courts or more like full-blown public utility regulation complete with a dedicated regulator? It is frustratingly hard to tell.

While some proponents of platform oversight appear (perhaps inadvertently) to equate common carrier regulation with public utility regulation, others are vague, though it may still be possible to divine meaning in the latter case. Based upon the language used and analogies cited in both the academic literature and the case law, it appears that the latter group of proponents of common carrier regulation also envision some sort of public utility model. Several factors support such an interpretation of the argument.

For example, while the phrase "common carrier regulation" appears regularly in the debate, regulation, by definition, requires rules. As such, somebody must be responsible for writing and enforcing these rules in compliance with the due process requirements of the Fifth Amendment (2) and the Administrative Procedure Act. (3) If the common carrier argument is, in fact, a public utility argument, then some sort of independent regulator (complete with its own dedicated enabling statute) will be required.

Second, many advocates for common carriage regulation (as well as reviewing courts) routinely turn to the telecommunications industry (and its governing statute, the Communications Act of 1934) as a supporting analogy. They say Internet platforms are "communications networks" and are therefore analogous to telephone companies and other electronic distribution networks, which are regulated as public utilities by the Federal Communications Commission (FCC). (4) Setting aside the fact that the assorted analogies to the telecommunications industry offered by proponents of Internet platform regulation generally do not paint an accurate picture of communications law or do not even involve common carrier regulation, (5) if FCC oversight of communications networks is the go-to analogy, then it must be understood that "common carriage" is a well-accepted term of art in the field which is synonymous with public utility regulation. Accordingly, by drawing heavily on the communications experience, that analogy would also seem to imply that some sort of public utility regulation for Internet platforms is the envisioned end goal. (6)

Finally, as discussed in Section V below, over the past several years, calls to regulate Internet platforms with a dedicated regulator have become prolific. Accounting for the political environment in which we currently find ourselves, it would not be unreasonable to infer that calls for common carrier regulation to regulate Internet platforms' speech are consistent with calls for a dedicated regulator to govern the economic behavior of Internet platforms. (Of course, if the vision for platform regulation is more like the less intrusive public accommodation model, then proponents should say so to clear up the confusion caused by statements suggestive of public utility regulation. They have not.)

Which brings us back to an interesting yet unanswered question: if we assume arguendo that First Amendment concerns are overcome (a question that will be answered by the Supreme Court relatively soon) and calls for common carrier regulation of Internet platforms are, in fact, calls for public utility regulation similar to FCC regulation of telephone companies, then what would such a regulatory regime for Internet platforms look like, and how would it work in practice? Proponents of the common carrier regulation provide no details. Viewing the question through a regulatory--as opposed to a First Amendment--lens, the purpose of this paper is to offer a few insights about how to fill that analytical gap and to ask if we will be happy with the inevitable consequences (intended and unintended) if we proceed down that road. (7)

To provide context, this paper begins with a brief overview of the legal origins of the "Internet platforms are common carriers" argument as a strategy to overcome First Amendment concerns. Next, this paper reviews the prominent academic literature arguing for Internet platforms to be treated as common carriers, which draws upon direct analogies to the communications industry. Given the language used and analogies to the communications industry provided, it appears that these proponents are using the term "common carriage" as a euphemism for public utility regulation. However, if communications regulation is to provide the analytical template for Internet platform regulation, then a more accurate understanding of communications law is required.

Following this discussion, this paper reviews Justice Clarence Thomas's concurrence in Biden v. Knight Foundation, along with the two cases--one from the Eleventh Circuit and one from the Fifth Circuit--in which, at the time of this writing, the Supreme Court has just granted certiorari. In these two cases, the question of whether Internet platforms may be treated as common carriers is at the heart of the dispute. Like the surveyed literature, these opinions copiously use the term "common carrier regulation" and make analogies to communications law, again leading the reader to infer that common carrier regulation really means public utility regulation. The penultimate section of this paper outlines some of the important--yet unaddressed--legal questions that will arise should the Supreme Court ultimately rule that Internet platforms are common carriers that could eventually be subject to some sort of public utility regulation. Conclusory thoughts are offered at the end of the paper.

II. COMMON CARRIAGE AS A POTENTIAL END-RUN AROUND FIRST AMENDMENT CONSTRAINTS

Under the First Amendment to the U.S. Constitution, "Congress shall make no law... abridging the freedom of speech." (8) Moreover, the Fourteenth Amendment makes the First Amendment's Free Speech Clause applicable to the states. (9) As Justice Brett Kavanaugh wrote for the majority in Manhattan Community Access Corp. v. Halleck, the "text and original meaning of those Amendments, as well as this Court's longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech." (10)

Some argue that because Internet platforms serve as the "modern public square," (11) they take on a quasi-governmental role and are therefore subject to First Amendment obligations rather than enjoying First Amendment protections. Not so. According to the Supreme Court in Halleck, under the Court's state-action doctrine, a private entity may be considered a state actor "when it exercise[s] a function 'traditionally exclusively reserved to the State.'" (12) As the Court observed, it is:

[N]ot enough that the federal, state or local government exercised the
                function in the past, or still does. And it is not enough that the
                function serves the public good or the public interest in some way
                Rather, to qualify as a traditional, exclusive function within the
                meaning of our state-action precedents, the government must have
                traditionally and exclusively performed the function. (13)
                

And, noted the Court, "[p]roviding some kind of forum for speech is not an activity that only governmental entities have traditionally provided." (14)

Given such a strong statement by the Court, it is probably safe to conclude that Internet platforms would not be held to provide a service that "only governmental entities have traditionally provided." Following the Court's reasoning, even though an Internet platform--which is clearly a private entity--provides "a forum for speech," it is "not transformed by that fact alone into a state actor" and may therefore "exercise editorial control over speech and speakers in the forum." (15)

The logic supporting the Court's holding in Halleck is compelling: the Court understood that the government placing restrictions on the ability of private entities to control the content on their platforms would have a chilling effect on their...