The Supreme Court’s recent decision to remand Moody v. NetChoice back to the lower courts has reignited the debate over whether social media companies should be treated as common carriers. At stake are fundamental questions about free speech, censorship, and the role of government in regulating online platforms.
Proponents argue that classifying social media companies like Facebook and Twitter as common carriers would ensure that they cannot suppress or moderate content based on political views. But as Market Institute Senior Fellow Norm Singleton explains, designating social media platforms as common carriers would likely expand government control over the internet, leading to more—not less—censorship.
He writes:
“The Supreme Court completed an eventful term by remanding the case of Moody v Net Choice to the lower courts. This case challenged the Texas and Florida laws forbidding social media companies from engaging in “content moderation”—which is a polite way of saying censoring posts expressing certain political views or containing information opposing a particular political narrative The laws were inspired by social media companies silencing dissenting views on subjects ranging from the government’s response to COVID to Hunter Biden’s laptop from hell.
Although the court did not directly rule on the case, it did indicate that it agreed that at least part of the Texas and Florida laws violate the First Amendment. Specifically, the court suggested the First Amendment applies to social media companies when they engage in “expressive activity.” An example of expressive activity is the compilation of “feeds” containing news stories, opinion pieces, and posts the company believes their users will find useful and interesting.
However, the Supreme Court found that the lower courts failed to address whether the First Amendment applied when social media companies acted as a conduit for the sharing of information—such as in the case of Gmail and other e-mail services—or social media sites like Facebook that allow users (within limits) to act moderator of their own personal pages and/or of a group page. In those cases, the social media companies are not engaging in expressive activity, thus the First Amendment does not apply.
The case boils down to whether Texas and Florida are correct that social media companies should be treated as “common carriers.” Common carriers are private or public entities that offer transportation or other services to the general public. Common carriers are equally open to consumers. Examples of common carriers include commercial trucking services, public transportation, and the Post Office. Utility companies are also defined as common carriers. Common carriers are subject to government regulations ensuring all potential customers can use their services while also ensuring the companies make a “reasonable” profit.
While the Supreme Court found that, for example, META (parent company of Facebook) enjoys First Amendment protection when it is compiling a news feed, it may not enjoy that protection when it is simply allowing individuals to post stories on their personal (or group) page, as long as those pages are not moderated by Facebook. In those cases, Facebook would not be engaging in expressive activity so the government may treat Facebook as a common carrier without running afoul of the First Amendment. One issue with this argument is that social media companies are vaguely engaging in expressive content when they remove or suppress a post, even if the post is on a personal or group page. Another issue is that curating feeds is not the only way social media companies engage in expressive activities on their platforms. For example, Gmail sorts messages into various categories, including primary, spam, and updates.
Furthermore, common carriers have the ability to protect their users’ expressive activity. For example, public transportation can remove a passenger shouting “Let’s Go Brandon”. The difference is that a common carrier’s ability to limit expressive activity on their property is regulated by government. Therefore, if those conservatives who have joined with the left in pushing legislation treating social media companies as common carriers succeed, the result will not be more free speech online but greater government control of social media.”
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