That’s the question we asked in our letter to the House Energy & Commerce Committee after FCC Commissioner Brendan Carr testified before its Subcommittee on Communications and Technology in late March. In his testimony, Carr recommended what would amount to a new Fairness Doctrine for the Internet, involving non-discrimination requirements for social media websites. Although he doesn’t refer to this idea as common carriage, these non-discrimination mandates are a central provision of common carriage regulation.
As we explained in our letter, common carriage for social media is a First Amendment violation because it compels publishers to go against their own editorial judgment and provide a platform for unwanted content. Carr’s particular version of the common carriage proposal would be subject to strict scrutiny since it favors some kinds of speech over others. Carr’s testimony also misrepresents Section 230, casting it as a regulation that protects content moderation instead of what it really is: a mechanism allowing publishers of user-generated content to avoid an unmanageable amount of costly, meritless litigation whenever they opt not to platform a piece of content. What protects the content moderation itself is the First Amendment.
Carr’s arguments here are baffling, considering that he spent his entire career at the FCC advocating against common carriage for broadband. He intimately understands the cost of misrepresenting what regulations can do, so why do just that in an effort to regulate content moderation on social media?
Read our related work on common carriage for social networks, including:
- Our amicus brief in NetChoice v. Paxton, the Texas social media law case (October 8, 2021)
- Our press release on a judge’s order blocking the Florida social media law (July 1, 2021)
- Our amicus brief in NetChoice v. Moody, the Florida social media law case (June 11, 2021)
- Social Media and Common Carriage: Lessons From the Litigation Over Florida’s SB 7072, WLF Legal Backgrounder (Sept. 24, 2021)
- Why is the Republican Party Obsessed with Social Media?, Techdirt (Aug. 17, 2021)
- Can Social Media Be Regulated Like Common Carriage?, Tech Policy Podcast (July 7, 2021)
- A Space for Everyone? Debating Online Platforms and Common Carriage Rules, UCLA Law (June 4, 2021)
- Trading Big Tech for Big Government Will Backfire for Conservatives, Daily Caller (June 2, 2021)
- Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (April 14, 2021)
- It Is Not the Government’s Job to Promote ‘Fairness’ Online, Salt Lake Tribune (April 9, 2021)
- Florida’s History of Challenging the First Amendment Shows DeSantis’ ‘Tech Transparency’ Bill is Doomed, Miami Herald (March 25, 2021) (paywall)
- Debate: Social Media, Free Speech, and Section 230, Federalist Society (March 18, 2021)
- No, Florida Can’t Regulate Online Speech, Lawfare (March 12, 2021)