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Would Treating Big Tech Companies Like Utilities Protect Free Speech Rights?

    Note: This article may contain commentary or the author's opinion.

    One idea that’s been circulating around the right, particularly the New Right, in the wake of the massive levels of social media censorship that came with the Trump years is the idea of regulating Big Tech companies as utilities.

    Particularly, some on the right want to regulate the large social media companies, companies whose platforms have essentially become the new public squares, as “common carriers.”

    Under existing American law, law that Cornell’s Legal Information Institute has done an excellent job of compiling, “A common carrier is a person or a commercial enterprise that transports passengers or goods for a fee and establishes that their service is open to the general public. Typical examples of common carriers include, a shipowner, railroad, airline, taxi service, etc.

    However, while the term usually applies to railroads and such, it can also apply to certain utilities, as Investopedia notes, sayingThe term is also used to describe telecommunications services and public utilities.

    So, the basic idea is that Big Tech social media platforms could be regulated in the same way that Verizon or AT&T are: as common carriers, they can’t kick you off the network just because they disagree with you politically.

    Your phone lines can’t be cut, after all, because you have a Trump 2020 flag flying out front, why should Twitter be able to boot you from the platform for sharing something about Hydroxychloroquine or Rachel Levine?

    As the thinking goes, social media censorship on the basis of political ideology would grind to a halt if the companies were regulated as common carriers, as such companies have services that are “open to the general public.” As part of the public, you should be able to use Twitter whether you’re all in on Trump or a Bernie Bro and making the modern public squares act as such–as squares that are open to all speaking protected speech (speech other than true threats, incitement, obscenity, and other speech that isn’t protected by the Constitution)–Congress could ensure that all Americans are able to express their viewpoints and build audiences without fear of being hit by a censorship slap. As put in RealClearMarkets:

    They [those in favor of the common carrier reclassification] claim that access to social media is a necessity of modern life that should be regulated by the government in order to guarantee equal access for all.  Many conservatives think that as a common carrier, social media platforms would have to give access to all points of view and not ban anyone, regardless of ideology, from their platforms.

    Some conservatives (conservatives of the libertarian type) are unconvinced, however. As the same RCM article puts it:

    One problem with these proposals is it would violate these companies’ First Amendment right to not be forced to provide a platform for speech they, or the majority of their platform’s users, find objectionable. This is not a theoretical concern, rather a requirement forcing companies to allow all views to be heard.  This would include racists, sexists, and those wishing to post images of extreme violence and even pornography on their platforms. This would likely lead to legislators, judges, and bureaucrats deciding what speech is acceptable for Internet companies to block from their platforms.  Given how many bureaucrats view all conservative speech as “hate” speech; there would thus likely be more silencing of conservatives online.

    Treating social media platforms as common carriers would mean social media companies would become as innovative and dedicated to customer service as the gas or electric company. This is because the regulations would likely force social media companies to offer a uniform product in order to avoid providing something that could in any way be seen as favoring one user over another.

    The second point might be fair enough, but the first is absurd. These companies are the public squares of our day. Why should they be able to determine what is acceptable discourse for the square? Can the authors honestly claim that Americans with racist, sexist, or otherwise objectionable to modern sensibilities viewpoints shouldn’t be allowed into the public square and aren’t under current law? If not, why should they be chased out of the virtual public square?

    Beyond that, innovation is a good thing, but hardly more important than protecting the right of the public to make its voice freely heard, Yes, developing new apps would be great, but Gettr and all the others would hardly be necessary if Twitter weren’t silencing those with whom the regime disagrees.

    Many on the right and left claim that “the marketplace of ideas” is what should determine the direction heads, not tradition, hierarchy, or any other factor that conservatives have used to direct nations for centuries. Fine, assuming that’s true, or at least true enough, we need a free marketplace of ideas to make it happen. That marketplace does not exist at present. It won’t until the social media companies are treated as common carriers and speech of all types is protected in the modern public squares, whether those squares like it or not and whatever the short-term effect on app development.

    By: Gen Z Conservative, editor of Follow me on Parler and Gettr.

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