Are Internet companies ‘common carriers’ of content? Courts disagree on a key issue

(Reuters) – (NOTE: After the original publication of this column, the US Supreme Court. agreedto temporarily block enforcement of the Texas law that prohibits social media giants from moderating content based on user views. In a dissenting opinion, Justice Samuel Alito, along with Justices Clarence Thomas and Neil Gorsuch, hinted that the common carrier issue will figure in the court’s final determination of the law’s constitutionality.)

States that want to impose restrictions or controls on the content offered by social networking sites and search engines face a fundamental First Amendment hurdle: Internet companies are private businesses, so generally speaking , they are entitled to constitutional protection against government interference in their business. freedom of expression rights.

But not if they belong to a special category of private companies known as “common carriers.” Historically, common carriers were companies that sold public transportation services to all comers. In modern times, the definition has been expanded to include communications businesses, such as telephone networks. Common carriers, again generally speaking, are subject to more regulations, including non-discrimination restrictions, than other carriers because they dominate the market for an essential public service.

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If social networking sites and search engines are common carriers, or could be considered common carriers as a matter of state law, then Florida, Texas, and Ohio legislatures would be empowered to impose content regulations without meeting a strict test for justify restrictions on businesses. ‘ First Amendment rights. As the US Court of Appeals for the Eleventh Circuit explained last week. NetChoice LLC v. Attorney General, State of Florida“Labeling social media platforms as ‘common carriers,'” would allow states to “evade (or at least minimize) First Amendment scrutiny.”

Last week, two courts disagreed on whether internet companies facing government regulation of content moderation can be considered common carriers. Circuit 11 said no, mostly defending a preliminary injunction barring Florida from enforcing a law that bars social media giants from restricting users’ political speech. The appeals court rejected the Florida lawsuit. plot that Twitter Inc and Facebook Inc have become such important information conduits that they are, in effect, public services.

But a state court judge reached a different conclusion in the Ohio trial. declaratory judgment lawsuit against Google LLC. Judge James Schuck of the Delaware County Court of Common Pleas partially denied of Google motion to dismiss the Ohio Attorney General’s complaint, alleging that Google search results favor Google products.

Schuck rejected the AG’s assertion that Google is a public utility, but found that the complaint properly alleged that Google is a common carrier of information. It is not yet clear, the judge said, what obligations Google will assume as a common carrier, but he said the discovery may establish that the state’s interest in fostering competition outweighs Google’s free speech rights.

The transit company’s issue is now before the US Supreme Court, mired in First Amendment-related questions about state restrictions on social media content moderation. As you surely remember (and as I reported earlier this month), two trade groups for giant tech companies have filed a emergency application ask the Supreme Court to stop Texas Attorney General Ken Paxton from enforcing a law that prohibits Twitter, Facebook and YouTube from “censoring” content based on user views. Like Florida in the case just decided by the 11th Circuit, Texas has argued, even in its short may 18 asking the Supreme Court to allow the law to go into effect, making social networking sites common operators subject to Texas 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’s decision last week in favor of social networking sites, which is apparently at odds with the 5th Circuit’s decision. order of a sentence Suspending a lower court injunction barring Texas AG from enforcing the law increases the likelihood that judges will ultimately agree to decide the merits of the tech companies’ First Amendment challenges to Texas and Florida law.

We already know that at least one magistrate sympathizes with the arguments of the states. Last year, in a concurrence With the Supreme Court’s decision not to hear a case argued by Twitter users suing then-President Donald Trump for blocking them, Justice Clarence Thomas floated the idea that social media platforms, with their concentrated control of information , are similar to regulated telephone networks.

“The similarities between some digital platforms and common operators or places of public accommodation can give lawmakers a strong argument to regulate digital platforms in a similar way,” Thomas said. And if the analogy holds, she said, then the solution for “dissatisfied” members of the public who believe they have been banned from such sites is obvious: “laws that restrict the right to opt out of the platform.”

That is exactly what the Texas and Florida laws are intended to do, of course, and both states have relied on Thomas’ agreement in their appellate brief. But in last week’s ruling against the Florida law, the 11th Circuit panel, Judges Gerald Tjoflat, Ed Carnes and Kevin Newsom, explicitly challenged some of the assumptions underlying the judge’s opinion.

By definition, Newsom wrote in the 11th Circuit ruling, common carriers present themselves as serving the public indiscriminately. Social networking sites don’t. Facebook and Twitter warn users from the moment they sign up that the sites “exercise editorial discretion in curating the content they display and disseminate,” the 11th Circuit said.

Nor can legislatures simply decree that Internet content providers be common carriers just because Twitter and Facebook dominate the public conversation, the appeals court said. “In short, because social media platforms exercise, and historically have exercised, inherently expressive editorial judgment, they are not common carriers, and a state law cannot compel them to act as such unless it survives First Class scrutiny. Amendment”, said the celebrated court.

The Fifth Circuit has yet to issue an opinion explaining its decision to lift a preliminary injunction barring the 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 of 1st. Amendment rights are not violated by Texas law.

Paul Clement of Kirkland & Ellis, which represents technology trade groups challenging Texas and Florida laws, declined to comment. Brian Barnes of Cooper & Kirk, who argued for Florida in the 11th Circuit, said by email that the state “will continue to press those arguments as the case progresses.” Justin Herdman of Jones Day, Google’s attorney challenging the Ohio AG case, did not respond to my email.

Read more:

US Court of Appeals Rejects Most of Florida’s Social Media Law

If the Supreme Court allows the Texas censorship law to proceed, the Internet will be a cesspool. Or not.

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alison frankel

Thomson Reuters

Alison Frankel has covered high-stakes business litigation as a Reuters columnist since 2011. A graduate of Dartmouth College, 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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