Social media platforms are not AT&T – InsideSources
It’s no secret that the Conservatives are upset with the way social media platforms like Facebook and Twitter are moderating. Following the Capitol riots and the subsequent decisions these companies took to to delete harmful content and prominent figures like former President Donald Trump from their platforms, many on the right say the big social media companies wield too much power over public discourse. Some even claim that social media sites are indeed modern. “public places” which should be prevented from moderating most forms of content by the First Amendment. Justice Clarence Thomas even considered this idea in his last Supreme Court. competition in Biden v. Knight First Amendment Institute.
However, social media sites like YouTube, Facebook, and Twitter are not government players. In fact, they have their own First Amendment rights. This was made clear in the carefully considered Ninth Circuit decision in Prager Univ. against google, where the court concluded that “[d]Despite YouTube’s ubiquity and role as an open platform for the public, it remains a private forum, not a public forum subject to judicial review under the First Amendment.
Not content with letting sleeping dogs lie, some have turned to alternative tactics to force social media out of moderation: the common law concept of “common carrier.” This approach has even received support from well-established legal thinkers like Philippe hamburger and Richard epstein. But the truth is, social media sites are not common carriers, and given the restrictions and regulations common carrier status would place on social media, the Conservatives shouldn’t want them to be.
“Public carrier” is a centuries-old legal term that applies to businesses such as railways and telephone companies. Unlike private or contract carriers, public carriers offer their services to the general public without distinguishing between their customers or deciding what to transport or not.
As a result, the classification of public carriers and the associated non-discrimination requirement would effectively bar social media from engaging in almost any moderation of content. This would look very different from similar restrictions on phones and railways which have little incentive or ability to moderate the use of their services.
Making it illegal for social media platforms to moderate content would result in a Mad Max-style internet, anything goes. Children would be subjected to some of the worst parts of the internet and platforms would be powerless to create safe ecosystems free from unwanted, offensive and profane material. People just trying to watch cat videos or connect with their families on Facebook would be forced to browse a sea of inappropriate content, such as racist posts or pornography.
Curators should always feel empowered to criticize content moderation decisions they disagree with. Conservatives who believe a site is removing rule-abiding political content should voice their concern, but treating social media sites as common medium won’t perfectly address concerns about conservative biases online. On the contrary, it would completely disrupt the way the internet works, ruin the market for ad-supported free social media, and fill the internet with all forms of harmful and inappropriate content.
Plus, categorizing social media sites as common carriers is a legal no-starter. The long-standing and widespread practice of intentionally selecting the types of users and content they will deliver is what sets social media apart from the classification of common carriers. Outside of a handful of online forums like 8chan, removing harmful content and keeping high quality content is a central part of the business model of social media sites. This business model is what legally distinguishes social media from true telecommunications operators such as telephone companies, which do not need to remove users or regulate the use of their services for their business model to survive.
The courts have specifically tenuous that “the term” public carrier “describes not the legal obligations of a company, but the way in which the company conducts its activities”. Non-discrimination is the central feature that distinguishes public carriers from other private companies like social media. AT&T’s categorization as a common carrier stems precisely from the fact that it does not discriminate, rather than a political desire for AT&T not to do so.
Social media platforms, on the other hand, pride themselves on their community standards and moderation practices and market themselves. They explicitly identify the type of content and the user they will not host. The entire business model of social media therefore relies on the decision of what to wear and what not to wear. Content moderation is basically removing or limiting users and content that don’t meet a site’s unique community standards. How a social media site applies these standards is integral to that site’s success. Because social media sites operate so differently from common carriers in their intentional and pervasive moderation practices, they could not legally be classified as such.
As the debate over the role of government in overseeing technology continues, conservatives should thoroughly analyze the implications of the proposals on how to regulate online platforms. They should be aware, for example, that attempts to force social media sites to host all content will only lead to an abundance of inappropriate and harmful content that no one wants to distribute to users of all ages. They should also be aware of the realities and legal restrictions, not only of the categorization of common carriers, but also of the First Amendment. Facebook has nothing to do with AT&T, and the Conservatives should never want to.