Uncommon Carriage

Abstract

As states have begun regulating the carriage of speech by “Big Tech” internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga.

This Article challenges the coherence of common carriage as a field and its utility for assessing the constitutionality and policy wisdom of internet regulation. Evaluating the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that conceptions of common carriage and its treatment by the courts vary significantly and are contingent on specific historical and technological circumstances. The Article observes that common carriage is an attractive nuisance for policymakers and judges. The doctrine distracts from difficult normative questions about the permissibility of government interventions into speech and the editorial discretion of internet platforms.

The Article disentangles talismanic invocations of “common carriage” by isolating three distinct issues: (1) the classification of “common carriers,” (2) the imposition of “common carriage” rules on those carriers, and (3) the First Amendment problems that flow from the imposition. Applying this novel three-part framework, this Article argues for a context-sensitive approach to internet regulations. This approach evaluates the designation of carriers, the imposition of rules, and the role of the First Amendment at a granular level to more robustly account for the complexity of contemporary internet platforms.

Final version available at https://www.stanfordlawreview.org/print/article/uncommon-carriage/

Keywords: Common carriage, First Amendment, telecommunications, Internet, Section 230, net neutrality, Fairness Doctrine, must carry, discrimination