Conclusion: Social Media as Common Carriers?

Finally, here’s the Conclusion to my Social Media as Common Carriers? article (see also this thread); many thanks to all of you for your comments on my posts—I’ll be reviewing them closely as I put the finishing touches on the piece in the next several days.

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How should the law deal with large tech companies using their power to block certain viewpoints, as a means of influence public debates throughout the nation? (By large, I mean companies such as Facebook, Google, and Amazon, the 5th, 4th, and 3rd largest American corporations by market capitalization, with valuations from $800 billion to $1.5 trillion.[280])

One solution would be to leave this to market forces and private property rights, allowing those companies to decide what user speech to allow on their platforms, disciplined only by their own judgment and the fear of loss of users. This may well be the right approach, which after all is how we predominantly ensure product quality and customer service in other areas. Absence of governmental regulation must always be one of the choices that we seriously consider.

A second possible solution would be to focus on structural changes, such as antitrust law.[281] Perhaps it’s not good to have corporations as large as Amazon, which have yearly revenue that’s greater than the yearly GNP of most countries ($280 billion for Amazon in 2019,[282] comparable to the GNP of Bangladesh, Egypt, Chile, or, to cite a rich Western country, Finland[283]). Or perhaps it’s specifically bad for such companies to have near-monopoly status in various important communications niches, as Facebook and Twitter do. Maybe they should be required to provide interoperable access, to diminish the monopoly-producing advantages of network effects.[284]

A third possible solution would be to treat social media conduits—at least as to their hosting functions—much like we treat some other conduits, such as phone companies and mail and package delivery services. Those conduits are often not even monopolies, in part because phone and mail services already provide interoperable access. But we limit their ability to pick and choose among customers, including based on customer viewpoint.

I’m not sure what the right answer is, but in this article I’ve tried to lay out some of the strongest arguments in favor of the third solution—both of its wisdom and its constitutionality—so that we can better consider all our options.

[280] Largest American Companies by Market Capitalization (as of July 1, 2021), https:‌‌//‌perma.cc/‌CHX9-KRSQ. I set aside here the important question whether, if there is to be any regulation, it should be imposed only on particularly large platforms—cf. City of Chicago v. Mayer, 124 N.E. 842, 844 (Ill. 1919) (interpreting state common carrier statute as limited to those “carrying on a large and extensive business”)—or on platforms more generally. See Eric Goldman & Jess Miers, Regulating Internet Services By Size (working paper).

[281] See, e.g., Balkin, supra note 91, at __.

[282] Amazon, Fortune:‌ Fortune 500 (as of June 2, 2021), https:‌‌//‌perma.cc/‌KVE2-8Z6B.

[283] These countries have populations of roughly 160, 100, 20, and 5 million, respectively.

[284] See supra note 89 and accompanying text.

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