Yesterday, TechFreedom submitted written testimony in advance of two hearings in the Tennessee General Assembly for House Bill 682 and Senate Bill 111. These bills attempt to do precisely what the U.S. Court of Appeals for the Eleventh Circuit ruled that Florida cannot do: violate social media platforms’ First Amendment right to determine what content to publish under the guise of common carrier regulation. Like Florida’s law, these bills will ultimately fail—leaving Tennessee taxpayers to foot the bill for expensive and time-consuming litigation over an unconstitutional law.
Our testimony reiterates that common carriage is not a mere legal category to be applied when legislators find it convenient, nor is it a magic spell that can disappear the First Amendment rights of social media platforms. The essence of a common carrier is that it offers the transportation of people or commodities to the public, on indiscriminate terms. Social media platforms simply do not fit the bill, descriptively or legally.
The core aspect of a social media platform’s business is not transportation at all, and social media platforms are not simply passive conduits traversing the digital road. Rather, platforms offer a differentiated array of forms of public-facing communication, including microblogs, photo sharing services, video-sharing platforms, and audio chat rooms. They are in fact modes of expression, for both the speaker and the platform, that enable the broadcasting of ideas and viewpoints—implicating a broader range of First Amendment concerns. As we have explained to numerous courts, social media platforms have a First Amendment right to decide for themselves what content to publish, and Tennessee cannot substitute its judgment for the platforms’.
We can be reached for comment at email@example.com. See our related work:
- Our Fifth Circuit brief critiquing HB 20’s common carriage theory (April 8, 2022)
- Our Eleventh Circuit brief critiquing SB7072’s common carriage theory (Nov. 15, 2021)
- Social Media and Common Carriage: Lessons From the Litigation Over Florida’s SB 7072, WLF Legal Backgrounder (Sept. 24, 2021)
- Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (Apr. 14, 2021)
- No, Florida Can’t Regulate Online Speech, Lawfare (Mar. 12, 2021)
- The Wall Street Journal Misreads Section 230 and the First Amendment, Lawfare (Feb. 3, 2021)