Recently, the Supreme Court heard oral arguments in two related cases about the ability of social media companies to maintain editorial control over the content users post on their platforms. The NetChoice cases, as they’ve come to be known, were brought in response to Texas and Florida laws passed in 2021 that sought to, in the words of their authors, “defend freedom of speech” and “tak[e] back the virtual public square as a place where information and ideas can flow freely.”
The 5th Circuit let the Texas law stand. The 11th Circuit, meanwhile, ruled that Florida's law violated the First Amendment. Thus, the Supreme Court was left to resolve an important split.
Although the substance of the Texas and Florida laws, as well as their accompanying lower court opinions, differ in key ways, similar themes have emerged throughout litigation. While the First Amendment is undoubtedly the most important concept that will be considered in these cases, another concept that has been discussed throughout petitioners’ briefs, as well as oral arguments, is whether social media companies should be treated as common carriers.
Such discussion is often couched in terms of whether a social media company is a so-called “publisher” that enjoys editorial discretion over the content on its platform, or instead is merely a conduit for third parties to utilize, similar to the postal service. Other times, Section 230 is invoked. But make no mistake: the debate is ultimately whether social media companies should be treated as common carriers under centuries of legal precedent.
Common carriage is an important, well-defined, enduring legal concept. Based on years of research into what is—and what is not—a common carrier, we find little support for the argument that social media platforms are common carriers.
For starters, common carriage requires a posted tariff: a rate charged equally to all comers as the literal price of doing business with the carrier. Most of these platforms are free to use; therefore, there is no posted tariff.
Second, common carriers solicit business with the general public. Their aim, and indeed their legal mandate, is to do business with as many customers as possible. Social media companies don’t do business with the general public, though. Instead, they solicit business from select third-party advertisers. While social media companies arguably provide the public a valuable and free service, when it comes to dollars and cents, the general public is not social media companies’ customer base, but rather its product.
Third, common carriers must offer the same services to all comers at the same rates. Modern social media companies explicitly do not engage in this practice. Instead, in the age of micro-targeted advertising and algorithmically-based feeds, platforms discriminate between users, offering them different content and advertisements, often in ways that users have not explicitly requested.
Fourth, common carriers are highly-regulated, government-micromanaged entities. In the United States, perhaps the most recent and vivid example of this was the highly-regulated, Ma Bell era of telephone networks. Common carriers such as these are controlled by laws and regulations that define in detail the role and responsibilities of the carrier, often at a technical level. Social media platforms, by contrast, exist in a dynamic and competitive market. Facebook, X, YouTube, Instagram, Snapchat, and TikTok all differ in key ways, both in their technical backends as well as in what they offer users. The Florida and Texas laws define the responsibilities of social media platforms in only a handful of narrow circumstances; this is hardly the typical regimen of common carriage.
Finally, and perhaps most importantly, federal law likely prohibits state-level common carriage regulation of social media platforms as common carriers.
To the extent that social media platforms actually are common carriers, they would likely be treated as such under the federal Communications Act of 1934. Consequently, states would be limited at most to regulating intrastate services. That is, states could regulate services doing business between Miami and Tampa, or Dallas and Austin, but not Miami and Dallas.
Of course, anyone who has ever used a social media platform knows that this is an impossibility. Social media platforms routinely obscure the geographic location of users who are uploading content, participating in a group chat, or commenting on content. Indeed, thanks to the privacy protections of modern software like iOS, unless a user intentionally geotags a post, the website itself may not even know where users are geographically situated at any given time. Thus, intrastate regulation of social media platforms would be a futile exercise in hunting phantoms and ghosts.
Even if intrastate regulation of social media platforms were possible, though, such attempts would likely be legally void as well. More than a quarter century ago, in Iowa Utilities Board, Justice Scalia wrote that federal authority to regulate communications “clearly applies to intrastate matters.” In the intervening years, many states have largely abandoned intrastate regulation as a result.
Ultimately, social media platforms aren’t interstate or intrastate services—they’re global services. Thus, in seeking to regulate social media platforms in their respective states, Texas and Florida lawmakers would not just be regulating these platforms within their respective states, or even the nation; instead, they’d be setting regulatory policy for the entire world.
Social media platforms capture the imagination of billions. They connect people and disseminate information and entertainment in ways that are uplifting, demoralizing, and everything in-between.
The potential harmful consequences of social media have received the attention of the public and lawmakers in recent years. Deservedly so. At their worst, these platforms can be manipulated to promote chaos, undermine public confidence in institutions, suppress political dissent, and exploit minors and other vulnerable groups.
The Florida and Texas laws at issue here were written to address these and other concerns. But sometimes, the cure can be worse than the disease.
In the NetChoice cases, the Supreme Court must reconcile the sprawling, complicated nature of modern social media platforms with centuries of important legal precedent. But in doing so, the Court need not resolve the imponderable reach and consequences of new technologies. Instead, it must limit itself to the law and the Constitution.
Limiting itself to the law includes understanding the place of common carriage in America’s legal landscape. Ultimately, we find no basis to support the contention that social media platforms are common carriers or can be regulated as such.
