Monday, July 19, 2021
Last Wednesday, former President Trump filed a class action lawsuit against Twitter, Facebook, and Google pursuant to their partisan censorship of viewpoints that conflict with those of their CEOs and employees. The next day, Trump took to the Wall Street Journal, where he succinctly summed up his most compelling argument for suing: “If they can do it to me, they can do it to you.” Ironically, this echoes what Bernie Sanders told the New York Times last March: “[Y]esterday it was Donald Trump who was banned, and tomorrow, it could be somebody else.” If Trump and Sanders take the same position on Big Tech censorship, the issue deserves serious attention.
Yet the Democrats and the media have summarily dismissed the class action lawsuit as a publicity stunt while insisting that “private companies” aren’t bound by the First Amendment. But it isn’t that simple. UCLA law professor Eugene Volokh writes, “Historically, American law has divided operators of communications systems into three categories — publishers, distributors, and conduits — and has set up different standards of liability for each.” Social media platforms fall into the “conduit” category. They are analogous to common carriers like telephone companies or places of public accommodation like city parks, neither of which may exclude individuals based on their political views. Volokh continues,
I think Congress could categorically treat platforms as common carriers, at least as to their hosting function. But Congress could also constitutionally give platforms two options: (1) Be common carriers like phone companies, immune from liability but also required to host all viewpoints, or (2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and-takedown basis).
Volokh is by no means the only legal luminary to suggest that social media platforms are analogous to common carriers and consequently subject to regulation by Congress or state legislatures. Supreme Court Justice Clarence Thomas created a considerable amount of hysteria on the left last April when he pointed out in his concurring opinion in Biden v. Knight that, like Twitter, Facebook, and Google, trains and communication networks are privately owned yet the law obligates them to serve everyone. Justice Thomas went on to note that Congress has granted social media platforms immunity from certain types of lawsuits but that it “has not imposed corresponding responsibilities, like nondiscrimination.”
This brings us to the special dispensation that social media platforms enjoy under Section 230 of the Communications Decency Act (CDA). Section 230 says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Upon learning of the