Are Social Media Firms Frequent Carriers?
In 1830 there were few experimental railroads in this country. By 1870 the railroad had become the main means of transport. A community without railroad access would wither. A city at the intersection of two or more competing lines could receive lower rates than a city dependent on a monopoly. A company that could negotiate favorable treatment from the railways could wipe out its competitors like Rockefeller’s Standard Oil. The result was regulation, first at the state level and then in the federal law on interstate trade of 1887. The principles of regulation were that the railroad service all comers, cap rates with a reasonable rate of return, and require uniformity per mile, and to demand that they apply equally to all senders who are located in the same location. The courts concluded that this government interference with the power of railroad owners was consistent with due process in relation to the theory that rail transport is essential and that the railways are therefore “joint carriers” in their business Is “of public interest”. The same regulatory model was later applied to the telephone network. It is now proposed for social media.
As early as the 20th century, the reporter AJ Liebling pointed out that “freedom of the press is freedom for a man who owns a press”. The Internet should have changed all of that so that anyone could be their own publisher without an intermediary and both a hundred flowers and a thousand harmful weeds could bloom unhindered. We edited this last year. It turns out we were wrong.
As the January 6th episode shows, Twitter, Google and Facebook are to a large extent the owners of social media. Their business model was to have pretty much everyone say pretty much anything to attract the largest possible audience, but that was a matter of what the owners saw as their own self-interest in the company. The now controversial section 230 of the Communications Decency Act allowed owners to use this business model with no liability for user-provided content, but does not mandate open access. Under the pressure of events, the platform owners have reminded us that, as the owners, they have the power to decide what and what not to publish on their platforms and what to say about what is published.