Experts Propose Common Carrier Regulation as Solution for Big Tech

First Amendment experts proposed using common carrier regulations to prevent “behemoth” big tech platforms from discriminating against users’ free speech, contending that these platforms exercise more control over public discourse than most people in history.

The Federalist Society for Law and Public Policy hosted a panel of “nationally renowned First Amendment experts” in June, including Eugene Volokh, an UCLA School of Law professor, Jed Rubenfeld, a professor at Yale Law School, and Mary Anne Franks, a law professor at the University of Miami, moderated by the Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia Circuit.

The experts discussed using public utility and common carrier approaches to combat censorship on big tech platforms. Common carrier means that a company must provide its services to anyone willing to pay its fees, such as a telecommunications company.

This approach contrasts with some who suggest alternating Section 230 of the Communications Decency Act, a law that grants tech companies legal immunity from hosting or removing content from their platform.

“Telephone carriers cannot say, oh we don’t like your speech, so you cannot use our services,” Volokh said of common carrier regulations.

Volokh cited liberal Supreme Court Justice John Paul Stevens from his dissenting opinion in Citizens United v. FEC (2010), who noted that unregulated economic power could turn into political power.

“There are substantial reasons a legislature might conclude that unregulated general treasury expenditures will give corporations unfair influence in the electoral process,” Stevens said.

Volokh added, “Justice Stevens’ concern is that economic power can, if unregulated, [turn] into political power.”

“When they’re trying to distort public debate by blocking a speaker … that is something we should rightly worry about.”

Volokh compared Facebook and Twitter’s platform management of users’ conservation to telecommunications companies hosting phone calls.

Volokh cited Rumsfeld v. FAIR (2006), holding that Congress could establish a law making a university’s eligibility for certain federal funds contingent on the school allowing military recruiters have access to campus.

He also noted that Tuner Broadcasting System v. FCC (1994) held that Congress’s requiring cable companies to carry certain types of content did not violate the First Amendment.

Rubenfeld echoed Volokh’s sentiment, noting that a “few huge behemoth big tech companies … exercise more power over the content of public discourse than anyone in human history.”

He added that there is a “possibility that these big tech platforms are already state actors for constitutional purposes” or that they could be considered part of the government in terms of violating constitutional rights.

“Governmental actors do not have First Amendment rights,” Rubenfeld said.

He added, “We are living in a completely uncharted world here… We’ve never dealt with a situation where control over the public square is concentrated in the hands of two or three or four or five companies.”