The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy

Journal of Free Speech Law, Vol. 1, P. 463, 2021

U of Penn Law School, Public Law Research Paper No. 21-30

47 Pages Posted: 30 Aug 2021

See all articles by Christopher S. Yoo

Christopher S. Yoo

University of Pennsylvania Carey Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Date Written: 2021

Abstract

Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial discretion over whom to carry or host. This gives putative common carriers and public accommodations substantial control over their First Amendment status. The jurisprudence on privacy regulation, quasi-common carriers, non-common carriage services, and public accommodations confirms that the First Amendment protections they enjoy are substantial.

Keywords: Constitutional law, First Amendment protections, free speech, digital platforms, common carriage, monopoly power, communications, public accommodations, right to exclude, non-discriminatory access, privacy, quasi-common carriers, non-common-carriage services, specialized services with net neutrality

JEL Classification: K23, K24

Suggested Citation

Yoo, Christopher S., The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy (2021). Journal of Free Speech Law, Vol. 1, P. 463, 2021, U of Penn Law School, Public Law Research Paper No. 21-30, Available at SSRN: https://ssrn.com/abstract=3912855

Christopher S. Yoo (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csyoo/

University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
88
Abstract Views
363
rank
367,160
PlumX Metrics