Last month, the Supreme Court dismissed a lawsuit as moot regarding Donald Trump blocking some Twitter followers. This was big news, but the headlines were dominated by a non-binding concurring opinion from Justice Clarence Thomas. While Justice Thomas agreed that the issue was moot after the change in presidential administration, he goes on to make an argument that private social media companies should be regulated as “common carriers” and their right to exclude should be limited. Some conservatives who are unhappy with content moderation decisions made by social media companies began to echo his call, and it appeared in legislative proposals as well. Now, with the Facebook Oversight Board’s decision to uphold the ban on Donald Trump, some Republicans have renewed calls for these burdensome regulations on private social media companies. The goal of these regulations would be to enforce a neutral digital space for consumers. However, “common carrier” regulations for social media companies rest on a misrepresentation of competition in the market and would bring about a host of unintended consequences for consumers.
Common carrier regulations apply to services that are considered to be essential for a public function and are considered public accommodations. Common carriers are subject to higher legal duties and are generally restricted from the right to refuse their services. Generally, these common carriers possess substantial market power and are akin to a utility. Examples of common carriers include railroad and telephone companies with a common example being a single bridge over a river where there are few or no substitute options available. There are good reasons for regulations like these in certain cases - for example you don’t want your electricity or water to be turned off for some arbitrary reason, and there is little reason to have multiple different water pipes being built for each house. However, these regulations are wholly unsuited for social media companies and an ideologically motivated imposition of these hefty regulations would not serve consumers well.
In Justice Thomas’ opinion, he argues that these companies have “no comparable competitors” and that “the industries may have substantial barriers to entry.” Those in the break-up-Big-Tech crowd have made similar arguments, but this claim is not true. TikTok, a social media company that competes with “Big Tech” platforms, had 315 million downloads in the first quarter of 2020, reportedly a record for most downloads any app has ever gotten. Clubhouse, an audio-only social media app, grew from 3.5 million downloads as of February 1, 2021 to 8.1 million by February 16, 2021. Snapchat, a photo sharing social media platform, saw its stock rise after a substantial increase in active daily users. The emergence and rapid growth of these very new companies cast into doubt the claims that social media companies lack competition and whether high barriers to entry are blocking out competitors.
Similarly important is that consumers appear to view a variety of sites as social media competitors. There may not be a perfect substitute for a social media site, but this is due to consumer choice, not monopoly power. While consumers may spend money on multiples of identical products, like socks, there is substantially less demand for duplicate social media platforms. Consumers choose where to spend their time between multiple social media platforms and obviously view these platforms as adequate alternative options. An individual more focused on their professional career may choose to spend their free time on LinkedIn rather than on a content creation platform like Tumblr. There is lively competition between social media companies large and small, and they largely fight for consumers’ engagement by providing more unique and innovative services. The fact there aren’t ten Facebooks can better be understood as a result of consumer demand rather than a cornering of the market.
Outside of the faulty premise for calling for common carrier regulations, the ramifications of these restrictions could lead to a host of problems for consumers and businesses. It is important to note the potential problems with defining what a “social media platform” is. For lawmakers, the obvious example is Facebook and Twitter as members of so-called “Big Tech.” However, less talked about platforms like Tumblr and LinkedIn would likely fall into this category. Would Reddit or Pinterest be subject to common carrier regulations as well, or even dating platforms like Tinder and Bumble? Platforms like Substack and Medium allow for writers to publish content online, and consumers are able to utilize comment features to communicate with each other and the author. Depending on how definitions are crafter, there is an appreciable risk of common carrier regulations affecting a larger swath of companies than the few that typically dominate the debate. Similarly, these regulations can bleed into other parts of the internet, including the web hosting services that host social media platforms. Common carrier regulations for “social media platforms” may sound like a targeted approach, but there could be a wide-range of services that could fall into this category, and in turn, be subjected to the hefty regulations associated with this classification.
While the goal for some advocates calling for common carrier regulations on social media platforms is to prevent content moderation that is perceived as biased, the reality is it could make the internet a much more hostile place for consumers and businesses. Forcing social media platforms to host content that may not be illegal, but most consumers would view as harmful. This should especially concern Republicans who have made protecting children a key part of their technology policy. Racist, pornographic, anti-Semitic, and other harmful but legally protected speech would be able to populate the internet and platforms would be unable to step in. Consumers would be forced to trudge through harmful and unsavory content, and businesses would likely be disincentivized from using these platforms with the risk of their brand being displayed side-by-side with unpleasant content. Content moderation policies are a business practice that allows platforms to differentiate themselves and provide a more user-friendly experience. Radical changes to compel the hosting of content could make the internet unrecognizable.
Onerous common carrier regulations on a portion of the internet will not address the underlying issues supporters believe it will. In an attempt to inject some standard of “fairness” into these platforms, these regulations could actually drive out competition and suppress innovation. Just as we no longer need a “fairness doctrine” for broadcast or radio media due to increased options for news consumption, the proliferation of social media platforms and growing competition undermines the need for “neutral” social media platforms. As Adam Thierer from the Mercatus Center accurately states, “treating today's leading social media providers as digital essential facilities threatens to convert natural monopoly or essential facility claims into self-fulfilling prophecies.” During Democrats’ attempts to overturn the Restoring Internet Freedom Order and reinstate Title II net neutrality rules, Republicans were rightly wary of what they described as akin to a “government takeover of the internet.” Now, conservatives should be careful about the content moderation debate being used to lead down the same path of burdensome government regulations on the internet. Common carrier regulations are ill-suited for social media platforms, and a light-touch regulatory framework is the best approach for taxpayers.