Are online companies “frequent carriers” of content? Courts diverge on a key issue

(Reuters) – (NOTE: After this column was originally published, the US Supreme Court agreedtemporarily block compliance with Texas law prohibiting social media giants from moderating content based on users’ views. In disagreement, Judge Samuel Alito, joined by Judges Clarence Thomas and Neil Gorsuch, suggested that the joint carriage issue will appear in the court’s ultimate determination of the constitutionality of the law. )

States that want to impose restrictions or controls on the content offered by social media and search engines have to face a fundamental obstacle of the 1st Amendment: Internet companies are private enterprises so, broadly, they have the right to constitutional protection against government interference with theirs. freedom of expression.

But not if they fall into a special category of private enterprises known as “frequent carriers”. Historically, ordinary airlines were companies that sold public transportation services to all newcomers. In modern times, the definition has expanded to include communications companies, such as telephone networks. Frequent airlines, again speaking broadly, are subject to more regulation, including non-discriminatory strikes, than other airlines because they dominate the market for essential public service.

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If social media and search engines are common carriers – or could be considered frequent carriers under state law – then legislatures in Florida, Texas and Ohio would be allowed to impose content regulations without performing a rigorous test to justify restrictions on companies. ‘1st Amendment Rights. As the 11th U.S. Provincial Court of Appeals explained last week in NetChoice LLC v. Attorney General, State of Florida“Labeling social media platforms ‘common carriers'” would allow states to “avoid (or at least minimize) the scrutiny of the First Amendment.”

Last week, two courts diverged on whether Internet companies facing government regulation of their content moderation could be considered common carriers. The 11th Circuit said no, mostly supporting a preliminary ban banning Florida from enforcing a law banning social media giants from restricting users ’political speech. The Court of Appeal rejected the Florida Court of Appeal argument that Twitter Inc and Facebook Inc have become such important information pipelines that they are, in fact, public utilities.

But a state court judge reached a different conclusion in Ohio declaratory trial against Google LLC. Judge James Schuck of the Delaware District Court of Common Pleas part neita Google move to dismiss the Ohio Attorney General’s complaint that Google’s search results favor Google products.

Schuck rejected the AG’s claim that Google is a public utility but found that the complaint adequately asserted that Google is a common carrier of information. It is not yet clear, the judge said, what duties Google will carry as a common carrier, but he said a discovery could establish that the state’s interest in increasing competition goes beyond Google’s freedom of expression.

The issue of a common carrier is now before the U.S. Supreme Court, involved with related questions on the 1st Amendment on state restrictions on moderating social media content. As you certainly remember (and like me reported earlier this month), two business groups for giant technology companies introduced an emergency application asking the Supreme Court to block Texas Attorney General Ken Paxton from enforcing a law that prohibits Twitter, Facebook and YouTube from “censoring” content based on users’ views. Like Florida in the newly decided 11th Circuit case, Texas argued, including in its May 18 short asking the Supreme Court to allow the law to take effect that social media is a frequent carrier subject to Texas anti-discrimination regulation.

The Supreme Court is expected to immediately rule on the request of the technical groups to postpone enforcement until a final judgment on the constitutionality of the law. The 11th Circuit decision last week in favor of social media – which seems to be in conflict with the 5th Circuit. one-sentence order remaining a pre-trial injunction prohibiting the Texas AG from enforcing the law – increases the likelihood that the judges will ultimately agree to decide the merits of the 1st Amendment challenges of the Texas and Florida laws.

We already know that at least one justice sympathizes with the arguments of the states. Last year, in a consent with the Supreme Court ruling not to hear a disputed case of Twitter users who sued then-President Donald Trump for blocking them, Judge Clarence Thomas proposed the idea that social media platforms, with their focused control of information, look like regulated telephone networks.

“The similarities between some digital platforms and common carriers or places of public housing can give lawmakers strong arguments for similarly regulating digital platforms,” Thomas said. And if the analogy holds true, he said, then the solution for “dissatisfied” members of the public who believe they have been excluded from such sites is obvious: “laws that limit the platform’s right to exclude.”

That’s exactly what the laws of Texas and Florida are supposed to do, of course, and both states relied on Thomas’ consent in their appellate briefing. But in last week’s verdict against Florida law, the 11th Circuit Commission – Judges Gerald Tjoflat, Ed Carnes and Kevin Newsom – explicitly disputed some of the allegations in the opinion of the judiciary.

By definition, Newsom wrote in the 11th Circuit Dominion, common airlines claim to be serving the public indiscriminately. Social media doesn’t. Facebook and Twitter have been advising users from the moment they sign that the sites “exercise editorial judgment to take care of the content they display and disseminate,” the 11th Circuit said.

Nor can legislation simply decree that Internet content providers are frequent carriers just because Twitter and Facebook dominate public conversation, the appellate court said. “In short, because social media platforms exercise – and have historically exercised – express editorial judgment, they are not frequent carriers, and state law cannot force them to act as such unless it survives examination of the First Amendment,” the court held.

The 5th Circuit has not yet issued an opinion explaining its decision to lift a preliminary injunction banning Texas law, so we don’t know if that court thinks social media websites are subject to regulation as frequent carriers or simply that the websites are the first. Amendment rights are not violated by Texas law.

Paul Clement of Kirkland & Ellis, who represents the technical business groups challenging both the laws of Texas and Florida, declined to give a statement. Brian Barnes of Cooper & Kirk, who argued for Florida at the 11th Circuit, said in an email that the state “will continue to press those arguments as long as the case goes on.” Justin Herdman of Jones Day, a Google advisor in its challenge to the Ohio AG case, did not respond to my email.

Read more:

U.S. Court of Appeals overturns most of Florida’s social media law

If the Supreme Court allows Texas censorship law to continue, the internet will be a well. Or not.

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Alison Frankel

Thomson Reuters

Alison Frankel has been covering high-profile business lawsuits as a columnist for Reuters since 2011. A Dartmouth graduate, she has worked as a journalist in New York City covering the legal industry and the law for more than three decades. Prior to joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.

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