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First Page

185

Keywords

Law; Common Carrier; First Amendment; Section 230; Social Media

Abstract

Concerns about the “concentrated control of so much speech in the hands of a few private parties” and their ability to suppress some user speech have led to calls to regulate online platforms like common carriers or public accommodations. Advocates of that regulation theorize that social media platforms host today’s public forum and are open to all comers and so should have a responsibility to be content neutral and allow all voices to be heard. Traditionally, the argument that private players, as opposed to only government actors, can violate individuals’ free speech rights was a progressive cause, but recently conservative voices have embraced it as well, leading to seemingly unified policy across the aisle. Classifying platforms as common carriers would place them in the sphere of public actors and impose nondiscrimination policies, preventing them from censoring the speech of their users. On the surface it is an appealing position that could limit Big Tech’s power to control content and shape the public conversation. Unfortunately, however, not only are these platforms likely outside the scope of existing common carrier doctrine, but even if such obligations were imposed on them, this would not address the underlying problem: the role the platforms play in developing the harmful content in the first place. Common carrier regulation may be appropriate in cases where information intermediaries are mere conduits of information, but it would not work in the social media context because those platforms are not mere conduits; instead, they actively participate in the facilitation and amplification of user content.

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