Conservatives Want Common Carriage. They're Not Going to Like It.
from the that's-not-what-common-carrier-means dept
From calls to break up Big Tech to Florida?s latest anti-tech law, one thing is clear?America?s lawmakers and bureaucrats are looking to regulate the online world. Building on the momentum of the Facebook Oversight Board?s recent ruling on President Trump and Justice Thomas?s concurrence in Biden v. Knight Institute, alternative proposals like common carriage are gaining traction among conservative lawmakers looking for new regulatory solutions.
More and more conservatives critique social media by arguing that websites like Facebook, Twitter, and Google are effectively the modern public square that shouldn?t have moderation practices built to balance online safety and free speech. So it?s only natural that a proposal like common carriage gained traction in the Trump presidency and has not lost momentum since. Just look at Sen. Hagerty?s 21st Century FREE Speech Act.
Some conservative critics think treating these sites as common carriers ticks many of their boxes?less content moderation, less alleged anti-conservative bias, and more regulation of America?s tech companies. But they?re wrong. Not only is it an unconstitutional solution, its design to work around First Amendment jurisprudence will almost certainly make the internet worse, not better, for conservatives. Common carriage will inch the internet towards an online ecosystem devoid of family-friendly options and teeming with the worst humanity can offer? including the very content conservatives hate like pornography, indecency, and profanity.
An attempt at common carriage regulation is unlikely to succeed in court?social media simply doesn?t fit the criteria necessary for this centuries-old designation. Derived from common law, common carriage was a way for the entire public to receive and transport goods and services deemed essential. When America started its own classification of common carriage in the 1800s, the principle of nondiscrimination was at the forefront of the discussion. American courts identify industries and businesses as common carriers if they do not distinguish between customers or decide what they will and will not carry.
Nondiscrimination is a central feature of traditional common carriers, but it is not a feature of social media. Unlike the railroads and communications companies of the Gilded Age, social media relies on the ability to contextualize and discriminate between different content to provide useful information to users. Content moderation is at the center of that, providing websites the ability to balance free expression and online safety to maximize both and make the internet somewhere we want to spend time. Concerned parents shouldn?t have to wade through expletives, references to violence, and sexual content just to connect with their friends and family as well as protect their kids online.
The ability to moderate is a feature, not a bug, of social media. This is not a matter of transporting goods and services from California to New York?in fact, it’s not really a matter of transporting anything. Rather than transporting data like telecommunications businesses, social media hosts content. They offer a space online on which content is posted and established in perpetuity as part of internet history, more like a museum than a railroad. Therefore, ensuring a curated collection of high-quality posts is a key part of their business model, rather than simply serving as a conduit of communication.
This is a matter of private forums and businesses with constitutional protections from government action under the Bill of Rights. Social media sites like any private businesses have First Amendment rights that prevent the government from coming in and forcing them to host speech they disagree with.
Placing social media under common carriage regulations would fall counter to their First Amendment rights and ensure content moderation is effectively impossible as the incentive to maintain online safety disappears. And by taking away websites? ability to moderate what gets posted online, the internet could easily become rampant with unwanted, offensive, and disgusting content, rendering many services unsafe for use at work or with family. That would only run counter to the founding values and family principles that conservatives seek to protect.
By doing their utmost to ensure websites aren?t allowed to remove lawful but awful content, conservatives may feel like they?re fighting to defend the principles of free speech, but instead they are stifling the free speech rights of media companies and risking exposing the everyday American looking to connect with family, friends, and coworkers to the worst aspects of the internet.
Conservatives, like all Americans, have the right to voice their concerns about the decisions made by social media platforms?and they should do so. But they shouldn?t mistakenly support actions that could put American families and kids in harms? way online and that would undermine free expression and free enterprise. No matter how it?s sliced or diced, common carriage classification will force social media and the internet writ large to become a cesspool of filth, completely devoid of either conservative or family-friendly values. Treating social media like common carriers could lead to a staggering increase of content that conservatives actively work to mitigate like online harassment, the proliferation of pornography, and other explicit materials that undermine the conservative commitment to family values.
Social media relies on the ability to discriminate between user-generated posts to succeed, actively not treating themselves like neutral transports of information or services like a common carrier would. With their longstanding practice of content moderation and their lack of a natural monopoly, the courts would simply be unlikely to categorize social media as common carriers. And we should be wary of categorizing websites for users of all ages as common carriers lest they become filled with offensive content even adults don?t want to engage with.
By turning to common carriage in their crusade to fight alleged anticonservative bias, conservatives might not like the result?an internet that ignores the best it offers while proliferating the worst.
Kir Nuthi is the Public Affairs Manager at NetChoice and a Contributor at Young Voices.