Are Social Media Platforms Common Carriers? Only If You’re a Judicial Activist.

A conservative jurist uses “common law” to mean “this thing I just made up.”

Buster Keaton rides a common carrier.

Republican politicians in Texas and Florida got fed up with how “Silicon Valley elites” “censor” “conservative views.” So they enacted a pair of blazingly unconstitutional laws, HB 20 and SB 7072, that amount to a government takeover of large social media platforms’ editorial policies. These laws would require the likes of Facebook, YouTube, and X to host and amplify hate speech and harassment.

I’ve written about how these politicians’ hostility to the First Amendment is a betrayal of conservative jurisprudence. I’ve also written about how their laws can’t be rescued by designating social media platforms common carriers. But I’ve yet to write about how ruling that social media platforms are common carriers is a betrayal of conservative jurisprudence. So let’s do that.

The legal challenges to HB 20 and SB 7072 are NetChoice v. Paxton and Moody v. NetChoice. The Supreme Court will hear oral argument in those cases on Monday. The merits and amicus briefs in support of Texas and Florida are littered with appeals to the common carrier theory. Broadly speaking, common carriers have to serve all comers (though in reality not quite all, as we’ll see) on nondiscriminatory terms. Railroads are a classic example. Applied here, the idea is that a social media platform, as a common carrier akin to the telegraph or the telephone, must treat all viewpoints the same.

This is a really bad idea. Under HB 20, if you host suicide-prevention content, you have to host pro-suicide content. And as that example illustrates, a social media post broadcast to the world is not even remotely akin to a private telegram or phone call. But I won’t take you on a tour of the common carrier theory’s many problems. (For that, see here.) I’m simply going to make a quick point about the “activist” nature of applying the common carrier theory to social media platforms.

Paxton and Moody form a circuit split. In Moody, three judges on the Eleventh Circuit unanimously struck down the main pieces of SB 7072. In Paxton, two judges on the Fifth Circuit upheld HB 20 over a dissent. One of the judges in the Fifth Circuit majority, Judge Andy Oldham, argued that social media platforms are common carriers.

“The common carrier doctrine,” Oldham observed, “is a body of common law dating back long before our Founding.” The “old is good” note in there is a bit of a head-scratcher. Hey, Oldham says, some ferries were treated as common carriers in the fifteenth century! That doesn’t strike me as the win he thinks it is. They also stuck people’s heads on pikes back then. I’m not much interested in how Henry VI’s judges tackled matters of law and economics.

Put that aside, though, and notice Oldham’s reference to the common law. Once upon a time, judges thought of the common law as something that exists “out there,” as something that they, the judges, “discover.” We’ve since lost our innocence. We acknowledge today that the common law is something judges make up as they go along. As Oldham notes, courts down the ages have had to decide “whether and to what extent the common carrier doctrine applied to new innovations and technologies.” In other words, courts have had to decide whether to make new law to the effect that some new service is, going forward, to be a common carrier.

Conservatives used to rail against “activist” judges. In that regard, they told us that judges shouldn’t “legislate from the bench.” We heard that one all the time. President George W. Bush said it: “Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench.” Well, common-law lawmaking is just lawmaking. It’s legislating from the bench. Antonin Scalia, conservative judicial saint, understood as much. He remarked “the uncomfortable relationship of common-law lawmaking to democracy.”

If a state statute is invalid under the First Amendment, a democratically ratified piece of the Constitution, by what means does a judge get to declare: “Too bad, I’m expanding the common law—and shrinking the scope of the First Amendment—so that the statute is valid”? It’s not an idle question, as that’s essentially what Oldham tried to do. In upholding HB 20, he expanded the common carrier concept to a new technology—the software of the web. He expanded it to a new mode of expression—the seamless many-to-many communication that takes place on social media. He even expanded the common carrier rules themselves. HB 20, which he blessed as a valid common carrier statute, forces platforms to carry indecent and offensive messages that a telegraph company would have been free to reject.

Judges make law when they “update” the Constitution too, you might object. Don’t the justices, even the conservative ones, apply the First Amendment to new technology and new modes of expression? But the Constitution and the common law are not on equal footing. It’s one thing for a judge to ensure that the Bill of Rights, a document with democratic legitimacy, offers a consistent level of protection for its guarantees over time. It’s another thing for a judge to openly make new law, based on nothing but his own say-so, in a common-law ruling. And it’s yet another thing for a judge to narrow the Bill of Rights through an innovative common-law ruling, as though the new rule that popped out of the judge’s head trumps the Constitution.

And Oldham tried to make a very innovative ruling indeed. As the author of the Eleventh Circuit’s decision in Moody, Judge Kevin Newsom, wrote, these cases aren’t about an insurance or telegraph company fighting a slightly novel common-carrier designation out of concern for a property interest. These cases involve social media companies that are in the business of speech. Oldham didn’t take a modest step in the history of common carrier law. He took a flying leap. He went on a frolic of his own. Much as he’d deny it, he’s halfway to saying that a state can address liberal bias at the New York Times by labeling it a common carrier.

Newsom was unsure “what work a common-carrier designation would perform in a First Amendment analysis.” But Oldham, a judicial activist if ever there was one, was magnificently sure. He made the common carrier theory do a lot. He made the common law work for him—at the Constitution’s expense.