Social media platforms have so transformed American life that many now view online speech as a right of citizenship—a right to be protected against even the very Big Tech powers that created it. Would treating platforms as common carriers shield online expression from Big Tech’s influence?
These two rights Americans hold dear: the freedom to speak their minds and the freedom not to listen when someone speaking her mind tries to tell them what to do. But over the last two years, social-media platforms have somehow managed to undermine both—curtailing Americans’ power to express their views through well-intentioned, but too-powerful content nannying.
Social Media’s Dueling Interests in Free Expression
After months of unproven complaints by Republicans that online platforms censor conservative speech, the issue came to a head when the nation’s leading social media platforms—Facebook, YouTube, and Twitter—all banned then-President Donald Trump. The platforms are in a tough spot: They face simultaneous pressure from Congress both to promote free expression and to remove harmful and offensive content. Their pattern of recent decisions shows, however, that they have chosen to prioritize the latter. Platforms have stretched their censorial reach beyond exceptional cases of false Covid-19 remedies or the Capitol Hill riot to touch even Americans’ everyday political banter, including discussions of firearms, sex and gender, climate change, and terrorism—topics that surely have the capacity to offend, but which are also central issues in the modern political landscape. By choosing to remove, shadow ban, and affix warning labels to ugly, but commonplace, discussions, Big Tech has made clear that its priority is online beautification, not free speech, and that its aesthetic vision will require the muzzling of much of everyday American speech.
Of course, Twitter and Facebook have their own interests at stake. Private entities are generally free to do what they like. If Facebook’s leaders think that certain types of content will spoil its online community, that is their prerogative. Tension between authors and prospective publishers is nothing new. The traditional arbiter has been the market. Publishers are free to reject content and authors to seek alternative publishers, but both are constrained by market forces. The loudmouthed, sensationalist author may find few takers for her work, and the nitpicky editor may find herself short on prospective authors. Author and publisher are free from censorship and compelled speech, but neither is truly free to do as she pleases.
Not so for Big Tech, which has completely upended the long-standing author-publisher stasis. The major social media companies—Facebook, Twitter, and Google—truly can do as they please. They enjoy such concentrated power over social media that they have felt free to dictate the boundaries of online speech. One obvious danger of such concentrated power is the potential for bias. The greater danger, however, may be in those censorship decisions that Big Tech freely admits, even celebrates: platforms’ efforts to beautify their social media landscapes by pruning unsightly content and muzzling its purveyors. However well intentioned such “tidying up” may be, it risks quashing important segments of public speech, not because they are truly beyond the pale of modern American discourse, but because they are out of step with the aesthetic sensibilities of Big Tech.
The Common Carrier Proposal
With Congress at a standstill, the issue may soon fall to the judiciary. This past term, in Biden v. Knight First Amendment Institute at Columbia University, the Supreme Court took up a case challenging former President Trump’s decision to block users from responding to his tweets. The Supreme Court dismissed the challenge as moot given Trump’s election loss, but Justice Clarence Thomas took the opportunity to comment on the legal challenges surrounding online speech and social media. He observed that although social media platforms “provide avenues for historically unprecedented amounts of speech,” never before has “control of so much speech [been] in the hands of a few private parties.” Soon, he predicted, the Supreme Court will “have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
Justice Thomas also discussed some of the legal tools available to courts. Social media platforms may be new, but concentrated private control over resources is not. Private entities are generally free to accept or reject customers and conduct business as they see fit, but the government has long deemed certain resources so critical as to warrant limitations on that freedom. Under historical doctrines governing common carriers and public accommodations, entities that control important public resources—think railroads, telecommunications companies, shops, hotels, and the like—are stripped of discretion to accept or reject customers and required to offer their services to all comers. Such requirements are accepted as necessary for the public good but burdensome and applied sparingly, typically where industry incumbents hold significant market power and some economic or social barrier makes a market-driven solution unlikely.
Justice Thomas raises the possibility that a similar principle should govern social media. To reduce bias and free-expression concerns, social media platforms could be required, like railroads and telephone companies, to support all users equally. Most people, after all, would not want telephone companies to deny service to individuals based on their political or religious views or their online comments about those subjects. But common carrier and public accommodations laws are, at best, an imperfect solution to the social media problem. First, they come with numerous well-understood costs: They interfere with entities’ freedom to respond to market demands and reduce consumer welfare; undermine corporate profitability and spending on innovation by increasing compliance and litigation costs; and impose licensing requirements and other barriers that solidify market leaders and benefit incumbents.
Second, it remains to be seen whether social media’s ills warrant such an extreme remedy. The costs of common-carrier and public-accommodation laws are sometimes justified—where, for example, a startup telephone company faces the insurmountable obstacle of laying a competing network of telephone lines. But whether Big Tech’s advantages over prospective startups pose a comparable hurdle is still an open question. Facebook, Google, and Amazon’s stockpiles of user data give them a tremendous advantage over potential competitors. They can mine their databases for insights into user behaviors and preferences and use that data to develop and target new products. And the network effect of their enormous existing user base protects them too. Why join a new social networking site if few of your friends are there? But their lead is not unassailable. Even in the shadow of Big Tech, recent years have seen the rise of TikTok, Signal, Parler, Clubhouse, and Disney+. And as WhatsApp’s privacy snafus and Quibi’s failed launch have shown us, it is possible even for established and well-funded companies to stumble. When they do, nimble upstarts have been ready to take their place.
That said, there are signs of danger. Somewhat concerning has been the dominance of Big Tech’s major firms. Google and Apple, for example, have wielded control of their market-controlling Android and iPhone app stores to take an astounding thirty-percent cut of all in-app purchases. And Amazon’s control of the online retail space, both as a platform for third-party sellers and as a seller of Amazon-branded products, has triggered antitrust actions by consumers and regulators who allege that it makes anticompetitive use of seller-pricing data.
More worrisome has been a series of moves by Big Tech that has, intentionally or not, undermined Americans’ ability to communicate their ideas. This spring, for example, Facebook barred from its Instagram platform a series of ads by Signal that promoted its privacy-minded alternative to Facebook’s WhatsApp and Messenger apps. Facebook also for many months blocked discussion of the theory, espoused by former CDC Director Robert Redfield among others, that Covid-19 escaped from a virology laboratory in Wuhan, China. Not until President Biden ordered an intelligence investigation did Facebook allow online discussion of the lab-leak theory. Finally, after the January 6 Capitol Riot, both Google and Apple booted the free-speech-focused microblogging app Parler from their app stores, making the app unavailable for new users. Amazon then pulled the plug altogether when it refused to continue providing web-hosting services to the company. Parler has limped along for months, struggling to find a reliable hosting alternative to Amazon and to implement content moderation practices that will appease Google and Apple.
Maybe this is just a blip. Perhaps social media’s democratization of publication technology has upset the status quo and we are suffering fleeting limitations on free expression as the market adjusts. But perhaps not. Perhaps a more dangerous trend is in motion. Big Tech’s efforts to restrict disfavored content, combined with its market dominance—which can prevent dissemination by alternative means—is exactly the combination that could ultimately justify a common-carrier-like must-carry requirement. Social media’s availability to all Americans and all viewpoints is that important. But we are not there yet. The problem is still working itself out in the marketplace. Will Parler survive? Is antitrust action merited? Will some new upstart emerge to serve all comers? Can the market loosen Big Tech’s grip on speech? I hope so. Common-carrier regulation is a strong medicine. It must not be taken hastily.