On August 1st, 2022, Wikimedia Foundation Summer Legal Fellows hosted a virtual panel event entitled “Common Carriers: Airlines, Railroads… and Online Platforms? Recent Developments in US Social Media Law & Implications for Regulating User Content Online.” Inspired by recent legal cases in Texas and Florida, this event explored whether freedom of expression still protects the right of online platforms to allow and remove user-generated content, or whether platforms should be treated as “common carriers,” required to host nearly any speech posted by users. If enacted, proposed regulations like these could impact Foundation policies and the ways that community members contribute to Wikimedia projects.
The event, moderated by Wikimedia Foundation Lead U.S. Public Policy Specialist Kate Ruane, included panelists Daphne Keller, Director of the Program on Platform Regulation at the Stanford Cyber Policy Center; Chris Lewis, President and CEO at Public Knowledge; Gaurav Laroia, Attorney Advisor for Consumer Protection at the Federal Trade Commission; and David Greene, Senior Staff Attorney and Civil Liberties Director at Electronic Frontier Foundation.
Common Carriers & Recent U.S. Legal Developments
Chris Lewis opened by introducing “common carriers,” a common law term for persons or companies that operate under a heightened duty of care because they offer services to the public, transporting goods and/or people. While common carriers initially referred to operators of stagecoaches, the term has since expanded to include innkeepers, railroads, airplanes, taxis, and rideshare companies. As David Greene shared, recent legislation in Texas and Florida attempts to bar social media sites from blocking content based on viewpoint and require platforms to carry all speech related to journalistic enterprises and all speech from political candidates within a certain timeframe leading up to an election. The Florida law also includes robust transparency requirements, such as requiring platforms to notify people each time their content is moderated.
“We are off the map of known First Amendment law”Daphne Keller, Stanford Cyber Policy Center
After discussing pros and cons of the proposed legislation, the panelists agreed with David Greene’s comments that the common carrier argument simply represents “the next thing being thrown against the wall” in an attempt to make online platforms state actors and regulate their content. Daphne Keller, author of the recent University of Chicago Law Review online article, “Lawful but Awful? Control over Legal Speech by Platforms, Governments, and Internet Users,” remarked how these potential regulations lie outside the map of known First Amendment law. With the caveat that there is no perfect solution to this issue, she proposed that the best solution would be to allow users options to choose how much content moderation they want.
Challenges to Online Platforms as Common Carriers
The panelists also addressed challenges presented by the recent developments in Florida and Texas, with Chris Lewis challenging the very premise of the policies, commenting on how legislation drafted with only one or two specific platforms in mind clearly reflects the legislation’s reactionary nature. Panelists also reiterated the need to tread carefully when drafting legislation in this area, as ill-defined terms like “digital platform,” “journalistic speech,” or “political significance” could present unintended consequences, especially given the variety of platforms that inhabit the social media space. Gaurav Laroia noted a further complication in regulating the business practices of online platforms in that, while one goal of the Federal Trade Commission is to diversify competition in digital markets, the agency is also prohibited from using its authority on common carriers, which limits their ability to step in and prevent unfair and deceptive practices.
The panel moved to other attempts to moderate online content around the globe, such as the EU Digital Services Act or the UK Online Safety Bill, then turned to contemplate the intersections of these recent US laws with Section 230, the portion of the Communications Decency Act that has traditionally provided internet platforms with immunity regarding third-party content. Chris Lewis commented that Section 230 protections make little sense when coupled with laws that label social media platforms as common carriers, adding how questionable it is that these laws are even being considered on the state level, rather than being handled on a federal or global scale. Daphne Keller enumerated some of the due process challenges that the Florida law’s transparency requirements present, as well as the practical challenges involved in mandating the diverse array of modern platforms such as Wikipedia to comply with such transparency requirements as telling users how many people saw their post.
“The reason I fight these laws is not because I love these platforms. It’s because I ultimately think it benefits users, and because I am concerned about governments being in control of editorial policies and manipulating our public discourse. If these laws take effect, there has been some breakdown in the barrier that shields us from government control.”David Greene, Electronic Frontier Foundation
The panel ended with discussion of several audience questions, including whether a common carrier rule that requires viewpoint neutrality would still allow platforms to address misinformation by considering misinformation a separate, unrelated phenomenon from viewpoint. David Greene responded that unfortunately this would be difficult, as misinformation remains inseparable from viewpoint. He added that, given how “viewpoint” is a subjective and undefined term in the proposed legislation, opponents may argue that a platform’s decision to remove misinformation is actually discrimination based on viewpoint. Panelists also discussed how these developments impact the average person posting content, and concluded by expressing general opposition to governmental interference on editorial policies and manipulation of public discourse.
The Wikimedia Foundation’s legal fellowship program
The Wikimedia Foundation’s legal fellowship program provides current law students and recent law school graduates an immersive in-house experience with specific education and training in the areas of Internet law and free knowledge organizations. Fellows make contributions to the wide array of legal issues facing the Foundation, from complex copyright questions and international freedom of speech issues, to mobile development and internal corporate compliance.
2022 Summer Wikimedia Foundation Legal Fellows