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There has been a lot of cries for social media platforms to be regulated as common carriers. However, what would be the actual, concrete events that must happen for such a thing to happen?

Does it require an explicit act of congress, for social media platforms to be regulated as common carriers?

Can someone who has been extensively deplatformed, eg. Trump, Alex Jones or Laura Loomer, file a lawsuit arguing that social media platforms are important enough such that they must be regulated as common carriers. And then the Supreme court basically legislates from the bench a la Obergefell?

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    You should include details of what a common carrier is and what that would mean for those websites.
    – Joe W
    Commented Mar 7, 2022 at 13:34
  • Nobody has the right to use a business intellectual property. If twitter could not allow and disallow people of their platform at their descretion then that would have grave consequences for IP and patent rights.
    – Neil Meyer
    Commented Mar 8, 2022 at 8:56

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However, what would be the actual, concrete events that must happen for [common carrier classification] to happen?

Congress would have to pass such laws, since social media platforms are currently covered by a different set of rules. In particular, the Telecommunication Act's concept of “information services” is a far better fit for social media websites than the “common carrier” concept. If the FCC were to unilaterally reclassify social media platforms as common carriers, that would be a difficult to defend position. It is also likely that other laws that require some content filtering would need to be updated or removed.

Can someone who has been extensively deplatformed […] file a lawsuit arguing that social media platforms are important enough such that they must be regulated as common carriers. And then the Supreme court basically legislates from the bench a la Obergefell?

Congress has already provided rules for the regulation of social media platforms. A lawsuit would have to show that these laws are unconstitutional. The existing rules on social media regulation will not be unconstitutional merely because of the scale and importance of those platforms. A free speech argument will not automatically work, (a) because the deplatformed person's free speech rights must be weighed against the platform's free speech rights, and (b) because the first amendment is a defensive right against the government, not against private entities such as a social media platform. Quite specifically, the amendment only says that “Congress shall make no law … abridging the freedom of speech”, but it does not prevent private entities from making rules about how their services may be used.

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    It should also be noted that calls to hold social media accountable for what it hosts would require them to moderate/deplatform more of its users. I am referring to calls in the past to remove the current legal shield that these platforms have. nytimes.com/2020/05/28/business/…
    – Joe W
    Commented Mar 7, 2022 at 15:53
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    It might be worth highlighting that an act of congress which makes social media platforms "common carriers" could be easily argued to be a violation of the "Congress shall make no law … abridging the freedom of speech" text of the first amendment.
    – Tim
    Commented Mar 8, 2022 at 3:11
  • You are correct. In the same way a newspaper has the right not to publish an article that it finds abhorrent. Twitter has the right not to publish political opinions it deems unfit.
    – Neil Meyer
    Commented Mar 8, 2022 at 8:58

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