Some conservatives frustrated with the content moderation policies and enforcement from social media platforms are seeking to empower the government to force platforms to carry more speech. In Tennessee, policymakers are considering legislation (HB 2369/SB 2161) that would designate social media platforms as common carriers, requiring these businesses to obtain a certificate from the Tennessee Public Utility Commission (TPUC). While this legislation claims to promote free speech, it would unfortunately stifle innovation, cost taxpayers, and make the internet worse for consumers.
The bill appears to be least partially inspired by an opinion from Justice Clarence Thomas in which he put forward the idea of common carrier regulations for social media platforms. This inspired legislation at the federal level as well. As NTU argues, onerous common carrier regulations for social media platforms are not in the best interest of consumers, would radically expand the government’s power over private businesses, and wouldn’t solve the purported problem. Justice Brett Kavanaugh correctly points out that merely hosting speech does not transform private entities into state actors.
Since private companies maintain their First Amendment rights, similar legislation seeking to impose common carrier regulations in other states like Texas and Florida have faced injunctions from the courts. Unfortunately, this has left taxpayers on the hook. Florida’s taxpayers are reportedly footing the bill for lawyers costing up to $675 per hour. Tennesseans, who are still recovering from a global pandemic and now are facing skyrocketing gas prices and inflation, should not be forced to dole out their dollars for attorneys to fight a losing battle in court. These costs would be in addition to the increase in state expenditures to enforce this legislation.
In addition, consumers would not realize the intended benefits if this legislation were to become law. While this legislation would likely face similar legal hurdles as other common carrier bills, even absent those challenges this bill would still not address the stated purpose. Common carrier regulations are not suited for social media platforms. Conservatives rightfully can point out concerns about the moderation practices of certain large platforms, but the common carrier approach is the wrong way to address this issue.
Content moderation decisions are a business decision that can differentiate services for consumers. The perceived over-moderation of conservative voices have created an environment where platforms like Parler, TRUTH, or Gab can differentiate themselves from other social media platforms based on their approach to user-generated content. Attempting to homogenize content moderation would stifle the opportunity for new market entrants to innovate and compete against incumbent platforms.
The Competitive Enterprise Institute notes that even if the goal is to promote more speech, common carrier regulations would likely lead to more unwanted or offensive content, like spam or hate speech, being hosted online. While the Tennessee bill provides an exception for “good faith” censoring that is applied “fairly and equitably” to all users, that would be an exceptionally difficult standard for platforms. It would likely incentivize a hands-off approach to “bad” content to avoid the implications that it was acting in a discriminatory fashion against some users but not others.
Promoting free speech online is an important and laudable goal. However, utility-style regulations don’t serve taxpayers or consumers well. Encouraging competition among social media platforms through low barriers to entry and a light-touch regulatory approach would serve consumers well and allow for the proliferation of more speech online. Common carrier regulations do the opposite, and Tennessean policymakers should abandon this misguided approach.