Tuesday Talk*: Volokh Ponders The Internet As Common Carrier

There have long been some laws that, in a different universe, raise problems that really can’t be reconciled with constitutional rights. Rent control, for one example. What authority does the government have to tell a landlord what rent he can charge a tenant? Anti-discrimination is another example. While the government can’t discriminate, what authority does the government have to tell individuals they can’t do so?

Of course, we acknowledge that these laws lead to a common good and so we indulge some legal legerdemain to rationalize why it’s okay for the government to tell private individuals and businesses how to function. We hitch the wagons to things like commerce and public access, and stretch connections to their breaking point and beyond to achieve goals we find desirable. This isn’t a discussion about whether laws prohibiting discrimination are bad, but what authority the government has to dictate the terms and conditions of citizenship and commerce.

Eugene Volokh has taken this to the web in a law review article in process.

Say that the U.S. Postal Service refused to allow the mailing of KKK, Antifa, or anti-vax publications.[1] That would be unconstitutional,[2] however much we might appreciate the desire of USPS managers to refuse to participate in spreading evil and dangerous ideas. And though UPS and FedEx aren’t bound by the First Amendment, they too are common carriers[3] and thus can’t refuse to ship books sent by “extremist” publishers.[4]

Likewise for phone companies, whether land-line monopolies or competitive cell phone providers.[5] Verizon can’t cancel the Klan’s recruiting phone number, even if that number is publicly advertised so that Verizon can know how it’s being used without relying on any private information.[6] To be precise, the companies need not be common carriers as to all aspects of their operation: They can, for instance, express their views to their customers in mailings accompanying their bills, without having to convey others’ views.[7] But they are common carriers as to their function of providing customers with telephone communications services.

There are, of course, obvious distinctions between the postal service, phone companies and the internet. Yet, do those distinctions suffice to make social media off-limits as a putative “common carrier”? Eugene argues not necessarily.

A. The General Constitutionality of Compelled Hosting

I think this sort of common carrier rule would be constitutionally permissible,
on the strength of three precedents:

  • PruneYard Shopping Center v. Robins, which upheld a state law rule that
    required large shopping malls to allow leafleters and signature gatherers (a
    rule that has since been applied by some lower courts to outdoor spaces in
    private universities);
  • Turner Broadcasting System v. FCC, which upheld a statute that required
    cable systems to carry over-the-air broadcasters; and
  • Rumsfeld v. FAIR, which held that the government could require private
    universities to provide space to military recruiters, alongside other recruiters.

These cases, put together, establish several basic principles.

One of the curiosities of a legal system predicated on precedent is that a step onto the slippery slope can prove the beginning of a slide into the abyss. While it’s a logical fallacy that the slide will happen, that isn’t to say it won’t. Each of these decisions reflected outcomes that many supported and the Court believed justifiable under their peculiar facts and circumstances. Yet in the process, the holdings gave us such squishy notions as this.

“Requiring someone to host another person’s speech is often a perfectly legitimate thing for the Government to do.” So wrote Justice Breyer, and the cases he cited (PruneYard and Rumsfeld), as well as Turner, fully support that view. PruneYard expressly rejected the claim “that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.” Turner and Rumsfeld rejected similar claims.

Notably, Eugene relies not on the rationales, but the conclusions of these decisions to make his point that a private property owner has no First Amendment right to “not to be forced by the State to use his property as a forum for the speech of others.” All that’s needed is a socially desirable result and rubric. There’s no doubt that relying on precedent is critical to maintaining a stable society, but is this a case of “remember the rubric and forget the rationale,” or have we now burned freedom on the cross of good intentions?

If social media are “the modern public square,” the law may constitutionally treat them (at least as to certain of their functions) the way physical public squares can be treated.

It’s rather surprising that Eugene has come out this way, and while he’s one voice on the issue of First Amendment law, he is an important voice. Indeed, he has a fan base that takes his every work as gospel. Is he right? Does precedent mean that private social media companies can be declared “common carriers” and compelled to do as the government bids? They are, de facto, the modern public square and it’s not as if that wasn’t their goal in the first place. Is it too much, then, to require them to assume the public function of the public square? Do they enjoy the benefit without the duty that goes with it?

Do the nuanced distinction behind the rubrics of Pruneyard, Rumsfeld and Turner render them inapposite, or has the law established that no private enterprise, no business, and, perhaps no individual, is beyond the reach of governmental mandate when there is a social good (assuming you agree that it’s a social good, even if beauty is in the eye of the beholder) to be had?

*Tuesday Talk rules apply.

28 thoughts on “Tuesday Talk*: Volokh Ponders The Internet As Common Carrier

  1. Miles

    I never expected Volokh to lead the charge against free speech and for compelled speech on the internet. Nor did I expect Volokh to be as shallow in his analysis of precedent as to take Breyer’s throwaway line and extrapolate it into a doctrinal rubric. My worldview is shattered.

    1. Pedantic Grammar Police

      Whose free speech is he against? Do the free speech rights of corporations trump the free speech rights of individuals? Does free speech include the right to censor the speech of others? The answers to these questions are not obvious, and I applaud Eugene for raising them.

      1. SHG Post author

        These aren’t hard questions, comrade. The First Amendment constrains the government. Not corporations. Not individuals.

    2. SHG Post author

      It would have been less surprising if there was some inexorable principle that compelled this conclusion, but that there are a few dubiously reasoned opinions does not compel one to blindly leap down the slippery slope. Precedent matters, but even stare decisis has its limits.

          1. cthulhu

            Nobody ever said her professed worship of stare decisis was consistent. Probably wept crocodile tears too.

  2. Will J. Richardson

    I view the Internet less as a “Common Carrier” and more as ejusdem generis to “Public Accommodations” as defined by Civil Rights Act of 1964.

    1. SHG Post author

      I see a good deal of similarity there as well, but then, was it raises the question of whether the constitutional rationale for the Civil Rights Act was principled, and if so, does it hold for the internet?

      1. Will J. Richardson

        With regard to the constitutionality of the Civil Rights Act, I believe the Public Accommodations title (Title II) was justified under the Commerce Clause because Congress determined that discrimination in Public Accommodations adversely affected Interstate Commerce with regard to protected classes. Certainly the almost everything affecting the Internet “affects” Interstate Commerce.

        I assume you’ve read The Age of Entitlement: America Since the Sixties, by Christopher Caldwell.

        1. SHG Post author

          That what was I was talking about with stretching the commerce clause beyond breaking point. As you’ve shown, it’s now so taken for granted that every it allows Congress to stick its finger into all commerce regardless of whether there’s any material interstate commerce. And then at the next level, that Congress isn’t legislating interstate commerce at all, but the thought processes of routine operation of individuals and businesses that have no connection to interstate commerce. I realize it’s hard to conceive of a world where Congress doesn’t dictate the most petty detail of interpersonal relationships today, but that’s the point.

          1. David

            I wonder if what you’re explaining is so conceptually foreign that no one under 60 can grasp a world before the Civil Rights Act where the government didn’t assert the authority to control people’s attitudes toward other races and sexes.

            It’s so normal now that they can’t imagine what a huge lines was being crossed in telling people how their ordinary interpersonal relationships had to be conducted. And as you say, not that it was bad, but the shift was monumental then and yet so normal today that it’s nearly impossible to grasp.

            1. Rengit

              The SPLC unfortunately labeled Rand Paul some brand of right-wing extremist for making this principled libertarian argument. Even Justice Stevens, into the late 1970s, argued that while it might be unreasonable to interpret the ’64 Civil Rights Act and related civil rights statutes following it to prohibit even the smallest amount of racial discrimination, the precedent set during the Warren Court required that segregation academies of the 1970s South, where black students were not officially banned but were in practice never admitted (or maybe one or two token admits), be forced to fully integrate or shut down. This logic was extended to sex discrimination with the Jaycees case in the early 80s, albeit the Jaycees’ policy against admitting women was explicit rather than implicit.

              This is how we ended up where we are today, with Masterpiece Cakeshop situations. It’s true that that case wasn’t about race, but the logic of antidiscrimination as intolerable at even the most micro level was well-ingrained by the time I was growing up, and now we’re reaching the point where, for example, people make serious arguments that antidiscrimination laws might require paintings be removed from walls and architecture be changed so as not to constitute a hostile environment. The concerns of the Supreme Court that wrote the 1880s Civil Rights Cases, that prohibitions on all private discrimination appeared to lack a limiting principle, are appearing more prescient rather than alarmist.

            2. SHG Post author

              I have no clue what your rant is about, but it’s got nothing to do with what David wrote.

  3. Howl

    Should it be decided that the government can mandate what can and cannot be done on the internet, how would that affect it’s primary mission?

  4. Charles

    He spends a lot of time discussing front-end social media interfaces only to conclude that he is advocating treating “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.”

    But the function of hosting of content in a Twitter account is far different than the hosting of content on a cloud-storage platform. What happened to @Trump (the loss of front-end platforms) is a very different than what happened to Parler (the loss of back-end platforms).

    There are so many layers to the Internet: DNS servers that convert simple justice.us into a URL address to storage providers to content-delivery networks to privacy management programs to the “pipelines” that carry it all, not to mention the payment-processor issues that have affected some websites. Trying to tackle it all leads to a 79-page law review article that end with…

    “I’m not sure what the right answer is…”

    – Eugene Volokh

    1. SHG Post author

      One of the reasons I limited this to Eugene’s views on the First Amendment implications was that a blog post isn’t 79 pages long. It’s unclear why Eugene felt the need to deal with so many of the nuts and bolts aspect, but the big picture issues struck me as more significant than the secondary aspects.

  5. Christopher Best

    I think there’s a much better argument to classify monopoly broadband ISPs as Common Carriers. In fact, I think there’s no other sensible way to classify them. But we can’t even agree on that because both sides have made it a political issue.

    I think every case cited by Mr. Volokh has facts that distinguish it enough not to apply here… Pruneyard dealt with a physical place generally accessible by the public, and a stronger protection for free speech in the CA constitution than Federal. Turner dealt with protecting the access to content produced by *government licensed* broadcasters on services with *natural monopolies*. Rumsfeld dealt with denying a university Federal funding for banning military recruiters. None of these seem to remotely fit the situation with e.g. Facebook without significant torture…

    The problem with using real-world analogies to talk about the Internet is there’s nothing in the real world like the Internet. I kinda get how you can squint and look at Facebook sideways enough that an argument about “the public square” starts to make sense… But it really doesn’t. Facebook is its own thing entirely unlike any real world antecedent, and we should craft policy that makes sense by recognizing it’s different, not bend and abuse existing policies until they kind of fit.

    But that would be hard, so let’s just go with car analogies.

    1. SHG Post author

      This has been the case with web analogies in law for a long time. Think search and seizure analogies.

      But it still doesn’t address the authority of Congress to dictate compelled speech.

  6. Richard Kopf

    SHG,

    You ask: “has the law established that no private enterprise, no business, and, perhaps no individual, is beyond the reach of governmental mandate when there is a social good (assuming you agree that it’s a social good, even if beauty is in the eye of the beholder) to be had?”

    Trust me, don’t trust judges to determine “social good.”*

    All the best.

    RGK

    * That also pertains to law professors even those as brilliant as EV.

    1. SHG Post author

      I have no plan to start. Then again, some do seem to believe they have a particularly fine tuned moral compass.

  7. Bryan Burroughs

    Three things
    1) The public accommodations parts of Civil Rights Act had their place when passed, but they’re now overbroad and unConstitutional. They should be replaced by laws which encourage non-discrimination in general by giving preferential treatment to businesses which don’t discriminate. Masterpiece shows just how absurd these laws have gotten. It was one thing when a black family could only travel as far as a half tank of gas. Being denied a cake for a date in the future seems to be a slap in the face to that concern.
    2) There is a valid concern about tech companies censoring viewpoints. I’m uneasy about forcing private companies to host viewpoints they disagree with though. I suspect a better option might be to deal with these companies’ monopoly positions (FFS, Amazon is a trucking company, web provider, distributor, retailer, and manufacturer), rather than treating them as bastardized firms of common carriers.
    3) Uh…. I forgot the third

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