Texas, Florida In First Amendment Battle Against Tech Giants


The Supreme Court will on Monday hear oral arguments in NetChoice v. Paxton and Moody v. NetChoice—cases which mark a pivotal moment for digital services’ future.

NetChoice, representing major tech platforms like Facebook and Google, is challenging Texas and Florida laws aimed at restricting social media’s authority to suspend users.

At the heart of this debate lies the question of whether these platforms should be treated as common carriers, bound to serve all users equally under the First Amendment.

The common carrier principle, rooted in centuries-old legal tradition, historically applied to businesses like inns and ferries, ensuring nondiscrimination in service provision.

Over time, this concept expanded to cover new industries like railroads and telecommunications. Notably, courts upheld common carriage principles in modern contexts, as seen in net neutrality regulations.

Social media platforms, by their nature, resemble common carriers, offering open access to all users.

However, they exercise some content curation, unlike traditional media outlets. Advocates argue that applying common carriage principles to these platforms would protect users’ rights to express diverse views without arbitrary suspensions.

Critics, including NetChoice, fear such regulations could lead to an influx of hate speech. Yet, well-designed common carrier rules would only safeguard the right to post content, while allowing platform suspensions for illegal or harmful behavior.

Moreover, the profit-driven nature of social media, reliant on engagement for ad revenue, exacerbates issues like hate speech proliferation. Common carriage regulation could address these concerns without stifling free expression.

Expanding common carriage principles to other tech sectors, like cloud computing and search engines, could ensure fair access and prevent anti-competitive practices. For instance, Ohio’s lawsuit against Google aims to regulate its search engine as a common carrier, similar to the European Commission’s antitrust ruling against the company.

In essence, preserving governmental authority to enact common carrier rules for digital platforms is crucial, despite concerns about specific laws or political affiliations. Upholding these principles would prevent further concentration of power in judicial or corporate hands, maintaining a fair and open digital landscape.