This morning, the Supreme Court will hear arguments in the most anticipated cases of the year for the future of regulating tech platforms, NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC. At the core of these two cases is whether Florida and Texas can regulate social media platforms, including by setting rules for content moderation and exclusion of users.
Much of the debate about the case focuses on the First Amendment and whether the platforms are best analogized to publishers. But there is another important argument that the Supreme Court will likely confront: whether platforms are akin to “common carriers.”
As we describe in a new paper, common carriage is an old concept, dating back to medieval English law and with a long pedigree in the American legal tradition. The core idea is that businesses that provide essential services to commerce and that tend toward monopoly or oligopoly need to be governed by special rules. Prior to the industrial era, wharfs, ferries, grain warehouses, markets, and inns were included in this category. Such businesses were said to be “clothed with the public interest.”
Among the rules that common carriers had to follow was an equal access mandate: They had to “serve all comers” impartially, without special privileges or discrimination. Carriers could, however, exclude people for good reason. Acceptable justifications for exclusion included illegal behavior, harm to users, or a danger to the service itself.
As new technologies emerged, judges determined whether these common carriage rules applied, reasoning by analogy to existing industries. In one instance, a court in Kentucky designated a telephone provider a common carrier merely five years after Alexander Graham Bell invented the communications technology. “The law must adapt itself to the new subjects that are brought within the range of judicial action,” the court said. “And Courts must reason by analogy from things that are settled, in order to establish principles to govern things that are unsettled.”
Over time, state legislatures and Congress stepped in, passing statutes regulating common carriers. One after another in the late 19th and early 20th century, new technologies were regulated in order to ensure that they served the public interest: the telegraph, the telephone, railroads, oil and gas pipelines, electricity, trucking, maritime shipping, airlines.