And the problem with Comcast is not necessarily that they will make speech decisions we don't like (an inherent part of free speech). The problem is that they're a monopoly and people don't have other options. So we should fix that problem instead of further limiting 1A rights.
Not if you set a new precedent that corporate moderation is protected speech under the First Amendment and invalidate those laws.
> The problem is that they're a monopoly and people don't have other options.
But this is the same problem with large platforms. They have a dominant market position in a market with a strong network effect.
> Not if you set a new precedent that corporate moderation is protected speech under the First Amendment and invalidate those laws.
Why would treating a social media site's moderation as protected speech automatically make the social media site a common carrier?
First of all, you're asking the question backwards. If corporate moderation is protected speech then why wouldn't it be protected speech for common carriers?
The only plausible answer is that they have a dominant market position, but then so do the large social media platforms, which are the only things these laws apply to.
Not necessarily. If the internet were as essential to average daily life today in the US as electricity (which I am not declaring true or false in this particular sentence), then it would be reasonable to treat ISPs but not websites as common carriers no matter how competitive the internet access market is.
Another answer that doesn't rely on the previous one would be that it is not reasonable to expect a social media site to deliver a user's speech as reliably as one would expect an ISP to deliver the speech. I got this idea from an excerpt on Wikipedia [1]:
> Cases have also established limitations to the common carrier designation. In a case concerning a hot air balloon, Grotheer v. Escape Adventures, Inc., the court affirmed a hot air balloon was not a common carrier, holding the key inquiry in determining whether or not a transporter can be classified as a common carrier is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury.
If you're referring to common carriers offering transport of physical goods or people (as cargo railroads and passenger railroads do) then a different answer could be that users can sometimes have priority over physical property owned by someone else, while treating websites as common carriers would mean giving users priority over physical property owned by someone else which the owner also uses (e.g. puts terms of service on and moderates) to express what kind of website the website is. In other words, outweighing property rights alone is easier than outweighing property rights and speech rights combined.
Moreover, I'm guessing that whether the public associates an ISP with third-party speech depends on whether the speech is protected. Suppose that a social media site is notorious for users who speak in favor of copyright infringement (copyright infringement being unprotected speech). The public might associate the ISPs those users use with copyright infringement (anecdote: Reddit, Frontier, and copyright infringement [2]). But what about protected speech? A social media site is notorious for users who speak in favor of hate crimes. Will the public be comparably likely to associate the ISPs those users use with hate speech?
But nothing I wrote above is not really an answer, since I've been speculating for the most part. I'm not very knowledgeable about the legal theory behind a common carrier designation, so here is something closer to an answer from Mike Masnick [3]:
> As you look over time, you’ll notice a few important common traits in all historical common carriers:
> 1. Delivering something (people, cargo, data) from point A to point B
> 2. Offering a commoditized service (often involving a natural monopoly provider)
> In some ways, point (2) is a function of point (1). The delivery from point A to point B is the key point here. Railroads, telegraphs, telephone systems are all in that simple business — taking people, cargo, data (voice) from point A to point B — and then having no further ongoing relationship with you.
> That’s just not the case for social media. Social media, from the very beginning, was about hosting content that you put up. It’s not transient, it’s perpetual. That, alone, makes a huge difference, especially with regards to the 1st Amendment’s freedom of association. It’s one thing to say you have to transmit someone’s speech from here to there and then have no more to do with it, but it’s something else entirely to say “you must host this person’s speech forever.”
> Second, social media is, in no way, a commodified service. Facebook is a very different service from Twitter, as it is from YouTube, as it is from TikTok, as it is from Reddit. They’re not interchangeable, nor are they natural monopolies, in which massive capital outlays are required upfront to build redundant architecture. New social networks can be set up without having to install massive infrastructure, and they can be extremely differentiated from every other social network. That’s not true of traditional common carriers. Getting from New York to Boston by train is getting from New York to Boston by train.
[1] https://en.wikipedia.org/wiki/Common_carrier#General
[2] https://arstechnica.com/tech-policy/2024/02/reddit-beats-fil...
[3] https://www.techdirt.com/2022/02/25/why-it-makes-no-sense-to...
> It’s one thing to say you have to transmit someone’s speech from here to there and then have no more to do with it, but it’s something else entirely to say “you must host this person’s speech forever.”
This is exactly what we ask of phone companies. As long as the customer has an account, the phone company routes their calls, forever, or until they cease to be a phone company.
Also notice how disingenuous this is. What it's meant to evoke is the unreasonable notion that they're required to keep operating their service for your benefit for free forever, when what we're really talking about is a non-discrimination rule. If they're continuing to host everybody else's 15 year old posts, they can continue to host yours. If they want to shut down their site, or delete everything more than 10 years old from everybody, they can do that too. The issue is when they want to delete you and not somebody else, solely because they don't like your opinions, or because their algorithm screws over innocent people and they don't care to fix it or have any responsibility for it.
> Facebook is a very different service from Twitter, as it is from YouTube, as it is from TikTok, as it is from Reddit.
Air travel is a very different service from trains, as it is from cars, as it is from ships, as it is from spacecraft. What does that have to do with whether planes or trains or taxis are common carriers?
If anything this is the problem. If they were all completely fungible services and you actually could just start your own with no loss of utility then it wouldn't matter what they do because you would have so many viable alternatives. The reason it matters is that you can't feasibly reach your Facebook audience via Tiktok, nor can you stand up your own Facebook instance if you have a dispute with Meta and use that to communicate with Meta's users.
Make it into that kind of fungible commodity market and then there is no problem with anyone moderating however they like -- because if you don't like someone's moderation you could swap them out without losing access to the people in the same network.
> This is exactly what we ask of phone companies. As long as the customer has an account, the phone company routes their calls, forever, or until they cease to be a phone company.
The phone company hosts a phone call for you and someone else. After you hang up, the phone call is over. Unless the contract promised as much, you have no expectation of later being able to ask the phone company to give you a recording of the call. The person on the other end has no expectation of later being able to ask the phone company to tell them what you said. The call is one and done. A social media post? Not so. You post, and as long as no automation removes it and no person manually removes it, the post stays and continues getting served.
As long as a customer has an active contract with the phone company, the phone company must continue to provide calls unless someone triggers an exit condition in the contract, in which case the phone company would be able to remove the account. But your average phone contract will not guarantee you a service for hosting an individual phone call forever.
Currently, any TOS you'll find from the big social media sites will allow the sites to remove any post or user for any reason or no reason at all. That's an exit condition that's always active. Everyone gets the same contract. Currently, the contract lasts 0 seconds, and possibly longer if the social media site decides to keep your posts up, doesn't decide to take them down, or forgets to take them down. If you turn certain social media companies into common carriers, then where would you draw the line relative to Facebook and a Mastodon instance? Twitter and a social media site for game discussions? Truth Social and Bluesky? Where does Hacker News fit into this? Would you turn all social media sites into common carriers, and how would you define a social media site? Keep in mind, a phone company doesn't stop being a common carrier if the phone company loses market share.
Mike Masnick's "fungibility" argument is unclear at best, but his point that transportation service is transient still stands [1]:
> Social media, from the very beginning, was about hosting content that you put up. It’s not transient, it’s perpetual. That, alone, makes a huge difference, especially with regards to the 1st Amendment’s freedom of association. It’s one thing to say you have to transmit someone’s speech from here to there and then have no more to do with it, but it’s something else entirely to say “you must host this person’s speech forever.”
...
> It is hosting content perpetually, not merely transporting data from one point to another in a transient fashion.
The average train company is a common carrier. You book a trip from station A to station B. You take the trip, and that's it. You don't get to take another trip with the same booking unless the contract said so.
Assume that ISPs are common carriers (which is not true because the FCC under Ajit Pai decided that ISPs are not common carriers; however, making ISPs common carriers is easier to justify than making social media websites common carriers). An ISP transmitting a website to you is not obligated to host the website, because transmitting bits doesn't functionally require storing them beforehand and because a large chunk of the responsibility of making sure that the website data to be transmitted exists right at this moment falls on the website owner.
Now assume that a particular social media website is a common carrier. You haven't made the case that social media sites must store posts. The social media site must allow anyone to sign up. The social media site must transmit any posts whose contents and audience have been specified, but it would be your responsibility to make sure that the social media site receives the contents to put in the posts every time someone wants to receive those posts. For example, you set a post to followers-only and send it. The post will be sent SMS-style to everyone who is currently following you. If you want followers to continually request a post, you are responsible for setting up an automated system to give the social media website the right post content i.e. you would have to host the posts to be transmitted. If the website offers to automatically read a passive folder of posts you want to repeatedly transmit, then the website has to offer that capability to everyone. However, the website can discriminate in deciding whose posts to host. The website might offer to host your posts, but doesn't have to do so for some amount of time unless the contract specifically says so, and doesn't have to make an identical offer to other users.
[1] https://www.techdirt.com/2022/02/25/why-it-makes-no-sense-to...
Even if it’s hard to stop using e.g. Facebook, it’s easy to access 1000000 other sites too, and publish your own. That’s not the case with ISPs - for the most part you can have only one.
There aren't 1000000 major social media sites. Sites with fifty users in total are irrelevant and can't be used for the same purpose, and for the same reason most people can't feasibly start their own.
> That’s not the case with ISPs - for the most part you can have only one.
This is also not true. You can generally choose between the "cable company" and the "phone company" in addition to satellite providers like Starlink and various cellular networks. You have about as much choice in ISPs as you have in social media sites, and in both cases it's not much.