Last Friday, TechFreedom filed an amicus brief in a Texas federal trial court in support of two trade associations’ lawsuit challenging HB 20, Texas’s new social media speech code. HB 20 imposes punitive reporting and processing requirements, as well as an unprecedented (and impossible) demand for viewpoint neutrality, on large social media websites. The law also declares that those websites are common carriers, a theory that loomed large in testimony about the bill. TechFreedom’s brief takes aim at this faulty “common carriage” theory.
“You can’t make something a common carrier simply by slapping a ‘common carriage’ label on it,” said Corbin K. Barthold, Internet Policy Counsel at TechFreedom. “Common carriage is a legal term of art with a specific history and meaning. At its core, common carriage is about transportation. The point of social media is not to carry material along a pathway, as a truck goes along a roadway, or a telephone call along a wire. It is, rather, to offer a diverse array of differentiated media products.”
“Social media products are expressive, like newspapers and parades,” Barthold continued; “they therefore fit squarely within a First Amendment framework, not a common-carriage one. Unlike entities that are properly treated as common carriers, social media function as editors, constantly making decisions about whether and how to allow, block, promote, demote, remove, label, or otherwise respond to content. Curation and editing of expression is, quite simply, antithetical to the concept of common carriage.”
“Because HB 20 blatantly violates the First Amendment, there is no need even to reach the topic of common carriage,” Barthold concluded. “But should the court see the need to address the common carriage theory, our brief explains in detail why it is a dead end for Texas.”
TechFreedom is immensely grateful to Jason A. Cairns and Reid Collins & Tsai LLP for their pro bono assistance in filing the brief.
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We can be reached for comment at media@techfreedom.org. Read our related work, including:
- Our press release on a judge’s order blocking a similar Florida law (July 1, 2021)
- Our amicus brief in the Florida 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)
About TechFreedom:
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.