5th Circuit Debates Common Carrier Argument in Social Media Lawsuit

A 5th U.S. Circuit Court of Appeals panel debated whether social media platforms more closely align with common carriers or with newspapers and broadcasters in a case that could have major implications for internet speech (see 2204040039). Judges were skeptical of arguments from both the tech industry and Texas during oral argument Monday in New Orleans.

Texas is appealing a successful lawsuit from the Computer & Communications Industry Association and NetChoice. The groups sued Texas over its social media law, citing First Amendment violations. Enacted in September, HB-20 would have prohibited larger platforms from blocking, deplatforming or otherwise discriminating against users based on viewpoint or location within Texas. A federal district court blocked the new law in December (see 2112030033).

Judge Edith Jones said she doesn’t equate Facebook and Google to news websites like Axios or Huffington Post. Judge Andrew Oldham questioned why social media platforms enjoy content moderation rights that aren’t given to common carriers like Verizon. Social media platforms argue that Congress recognizes them as publishers, but they also claim liability protections under Communications Decency Act Section 230 that are denied traditional publishers like newspapers, said Ryan Baasch, attorney for Texas Attorney General Ken Paxton (R). The position isn’t reconcilable, said Baasch: Platforms can’t absolve themselves of responsibility for content they host while also claiming a First Amendment right to manage and editorialize content.

Arguing for CCIA and NetChoice, Scott Keller said Texas is using failed common carrier arguments and hosting theories the Supreme Court has repeatedly rejected. If courts side with Texas, it will result in a deluge of complaints designed to chill editorial discretion, he said.

Oldham questioned the gap in editorial control between platforms and ISPs. He cited the Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, which said a parade organizer could exclude an LGBTQ float because it interfered with the organizer’s message. The tech industry is arguing its platforms are parade organizers, so Twitter could theoretically decide it doesn’t want to carry any pro-LGBTQ speech, and it would be protected under the First Amendment, Oldham asked.

Yes, Keller said: Twitter could remove all pro-LGBTQ speech if it wanted. “That’s extraordinary,” said Oldham. The judge asked if Verizon could decide to listen to phone conversations, screen speech and remove users it disagrees with, due to the telco being a private company.

Telecom services are nothing like websites, said Keller. Courts don’t recognize Google and Facebook as common carriers because they “don’t hold themselves out as afforded neutral and indiscriminate access without editorial filtering.” That’s the line, he said.

Judge Leslie Southwick questioned Texas’ application of Section 230 when determining what is protected speech. Regardless of Section 230 application, the First Amendment protects a platform’s right to moderate speech, said Southwick.

Baasch argued the platforms should be treated like common carriers. Jones said the problem with the common carriage rationale is that platforms don’t have a natural monopoly. They may be de facto monopolies, but there's no “shortage of the cloud,” meaning they aren’t natural monopolies, said Jones. She asked why the court should expand and contort common carrier law to fit this case.

Courts have decided the primary factor in defining common carriers is the willingness to “do business on equal terms,” said Baasch. Another factor is whether the entity is in the transportation or communications sectors, he said. Market power is a factor, but it’s unclear if natural monopoly has been recognized as an important factor, he added.

Platforms are more like telegraph and telephone companies than like newspapers, argued Baasch: Telcos allow communication to travel in two directions, while newspapers sign off on content and publish it to be distributed in one direction, to consumers. The Supreme Court never recognized editorial discretion for phone companies to screen calls or drop service, he noted: Nobody ever thought they have a constitutional right to behave that way.

Jones appeared to struggle with whether platforms like Facebook or Google should be considered websites, instead of regarded as something else -- interactive computer services. Telecommunications companies provide internet services and hardware, while social media and news publishers provide content on top of those services, said Keller: Social media websites are more like book stores or newspapers than common carriers.

Jones questioned how a social media platform, claiming it's a publisher of content, can also claim immunity under Section 230, for which newspapers can’t. “I don’t see how you can have it both ways,” she said. Both the First Amendment and Section 230 protect editorial discretion, said Keller.