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First Amendment Experts Suggest ‘Carrier Regulation Strategy’ for Countering Big Tech Censorship

Jonathan Walker
Jonathan loves talking politics, economics and philosophy. He carries unique perspectives on everything making him a rather odd mix of liberal-conservative with a streak of independent Austrian thought.
Published: June 25, 2021
Big tech platforms like Facebook and Twitter are under fire for their policies regarding censorship.
Big tech platforms like Facebook and Twitter are under fire for their policies regarding censorship. (Image: geralt via Pixabay)

On June 11, the Federalist Society for Law and Public Policy hosted a panel of nationally recognized experts on the First Amendment. The group included Jed Rubefeld, a professor at Yale Law School, Eugene Volokh, a UCLA School of Law professor, and professor Mary Anne Franks, a law professor at the University of Miami.

The panel discussed applying the strategy of a “common carrier” approach to tackle the issue of big tech platforms such as Facebook and Twitter censoring content. The common carrier approach stipulates that companies should provide services to anyone who pays for them. For instance, AT&T cannot prevent users from using their telecommunications services simply because they don’t align with what their users are talking about.

During the discussion, Rubenfeld said, “a few huge behemoth big tech companies…. exercise more power over the content of public discourse than anyone in human history.” Rubenfeld also expressed concern that there could be a “possibility that these big tech platforms are already state actors for constitutional purposes.”

However, the First Amendment might make any attempt to subject social media platforms to common carrier laws ineffective. In the 1974 case Miami Herald v. Tornillo, the U.S. Supreme Court unanimously ruled that a Florida statute which mandated newspapers to provide equal access to all political candidates was unconstitutional. 

The court held that the statute interferes with the newspaper owners’ right to determine content.  It dismissed the argument that the state had the power to mandate equal access from newspapers since publications were enjoying monopoly in the market. 

Social media platforms have increasingly been suppressing conservative people and their opinions. On January 7, Facebook banned Trump from the platform following the Jan. 6 Capitol breach. Even after Trump was acquitted in his second impeachment in February which accused him of “incitement of insurrection,” Facebook continued the ban. On June 4, Facebook announced that Trump would be suspended for two years.

Twitter permanently suspends President Donald Trump's Twitter account.
Twitter permanently suspends President Donald Trump’s Twitter account. (Image: Justin Sullivan/Getty Images)

In May, Facebook permanently banned LifeSiteNews because the website had published an article discussing the adverse effects of COVID-19 vaccines. 

“Much like when LifeSite was removed from YouTube, this comes with little surprise… Facebook has been silencing any voice that goes against their beliefs and agenda,” LifeSiteNews Marketing Director Rebekah Roberts stated.

On April 15, Twitter permanently suspended the account of James O’Keefe, the founder of Project Veritas. The ban came after he shared a series of recordings which exposed a CNN campaign to help Joe Biden win the 2020 presidential election. 

American internet companies are also censoring people at the behest of non-democratic governments. Last year, the BBC reported on Amnesty International accusing Google and Facebook of having aided the Vietnamese government to censor opinions of people expressing critical views of the government.

Ming Yu Hah, Amnesty International deputy regional director for campaigns, told the BBC, “In the last decade, the right to freedom of expression flourished on Facebook and YouTube in Vietnam. More recently, however, authorities began focusing on peaceful online expression as an existential threat to the regime.”

The BBC article stated how the communist  Vietnamese government has held a reputation for actively restricting free speech.

Ming added, “Today these platforms have become hunting grounds for censors, military cyber-troops and state-sponsored trolls. The platforms themselves are not merely letting it happen – they’re increasingly complicit.”

State action 

On March 5, Texas Governor Greg Abbott spoke at a press conference where he pledged support to a new bill that would focus on fighting social media censorship of conservative voices on major social media platforms.

He accused these platforms of supporting a “dangerous movement” across the country to silence conservative viewpoints. He stated that they were “choosing which viewpoints are going to be allowed to be presented.”

On April 7, Indiana Attorney General Todd Rokita stated that he would be scrutinizing big tech companies Apple, Google, Amazon, Twitter, and Facebook for potentially having caused harm to consumers in Indiana through “abusive, deceptive and/or unfair” practices. Rokita mentioned he would specifically be looking into practices that allegedly restrict access to particular content, such as blocking or deleting posts with conservative viewpoints.

“In a free society, few assets are more important to consumers than access to information and the opportunity to express political viewpoints in meaningful forums. It is potentially harmful and unfair for these companies to manipulate content in ways they do not publicly discuss or that consumers do not fully understand,” Rokita said.