Uncommon Carriage

Reid, Blake E.

As debates over the regulation of “Big Tech” Internet platforms—social media, search, and more—have swirled, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Common carriage law increasingly is invoked as a talisman to justify the imposition of non-discrimination rules on platforms targeted at both economic discrimination and content moderation.This Article challenges common carriage law’s coherence as a field and its utility for assessing contemporary Internet policy. Assessing the post-Civil War history of common carriage law regimes in telecommunications law, it demonstrates, contrary to popular assertion, that consistent, coherent notions of “common carriers” and “common carriage”—and associated First Amendment doctrine—simply don’t exist.Instead, as this Article explains, the talismanic invocations of “common carriage” often conflates three distinct questions: (1) classifying “common carriers,” (2) imposing “common carriage” rules on those carriers, and (3) the First Amendment problems that flow from the imposition. What is often posited as “common carriage” law encompasses a diverse collection of widely differing and difficult-to-reconcile classifications of “carriers,” “carriage” rules, and First Amendment doctrine. Together, the classifications, rules, and doctrine form an attractive nuisance for policymakers and judges that distracts from difficult normative questions over the extent of permissible government interventions into speech and editorial discretion that lie at the heart of contemporary debates over Internet policy.Applying this novel three-part framework, this Article makes a case for a context-sensitive approach to Internet regulations that evaluates the designation of carriers, the imposition of rules, and the role of the First Amendment on a granular basis that considers the vast degree of diversity that manifests across the Internet’s layer stack.