CONTEMPORARY FIRST AMENDMENT PROTECTIONS

”[L]ittle is gained by simply declaring an actor to be a common carrier or public accommodations. . . . [T]he key is whether the actor asserts individualized business and editorial judgment over the content it carries. The mere attempt to attach a label without more accomplishes little.”

CHRISTOPHER S. YOO, John H. Chestnut Professor of Law, Communication, and Computer & Information Science and Founding Director of the Center for Technology, Innovation & Competition

In “ The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy,” published in the Journal of Free Speech Law, Yoo contributes nuanced insight to ongoing conversations regarding what First Amendment freedoms common carriers and public accommodations enjoy. This jurisprudence significantly impacts contemporary issues of net neutrality, content moderation, and privacy.

What Constitutes Common Carriers and Public Accommodations?

Entities considered “common carriers” or “public accommodations” have historically been subject to greater limits on their right to exclude people under the First Amendment. Recent D.C. Circuit and Supreme Court opinions ask whether social media platforms may fall into one of these two categories — a determination that would carry substantial impacts on the ways information is shared online.

In Biden v. Knight First Amendment Institute, Justice Clarence Thomas outlines a list of considerations that courts have historically used to determine whether an entity is a “common carrier.” Among the considerations are whether an entity has market power, is affected with the public interest, is involved in the transportation or communications industry, has received countervailing benefits from the government, or is holding itself out as “providing service to all.” After considering each component in turn, Yoo concludes that “[h]olding out . . . appears to be the most widely accepted common law definition of common carriage that courts apply in the absence of a specific statutory condition. The problem is the ease with which it can be evaded.”

Similarly, one of the most common historical indications that an entity was a “public accommodation” was whether it held itself out as serving the public. Following the Civil War, many states began narrowing their understanding of a public accommodation to only those entities specifically enumerated in civil rights statutes. Modern statutes — most notably, the Civil Rights Act of 1964 and the Americans with Disabilities Act — define lists of which types of entities constitute public accommodations.

“As an initial matter, the fact that common carriers are one of two types of entities universally accepted as constituting public accommodations means that the latter concept is completely inclusive of the former,” Yoo writes. “The modern view holds that any expansion beyond the traditional categories of innkeepers and common carriers requires the enactment of positive law. This includes statutory definitions that explicitly refer to common carriage or ad hoc access regimes often dubbed quasi-common carriage.”

What First Amendment Protections Do Common Carriers and Public Accommodations Enjoy?

After determining whether an entity might be classified as a common carrier or public accommodation, the next step of the analysis is to establish the extent of First Amendment protection afforded.

The Supreme Court has never clearly addressed the First Amendment protection afforded to common carriers. Although many assert that the level is low, the Court’s decisions in Central Hudson Gas & Electric Corp. v. Public Service Commission and Sorrell v. IMS Health demonstrate that the First Amendment does protect common carriers’ commercial speech. This includes a common carriers’ ability to use data they collect.

Further, regarding “quasi-common carriers,” the D.C. Circuit has distinguished between the views the entity expresses and the views they merely allow to “pass through.” Additionally, entities that do not hold themselves out as serving the public indiscriminately might not be treated as “common carriers” for First Amendment purposes.

Crucially, common carriage regulation is determined on the basis of a firm’s activity, meaning that even if a firm partakes in several activities, each one will be evaluated separately to determine if it qualifies for common carriage analysis. In example, Yoo points to Circuit decisions protecting common carriers’ First Amendment right not to carry “dial-a-porn” services or to offer cable television programming.

“Together, the cases on quasi-common-carriers and noncommon-carriage services both support according strong First Amendment protection to services over which common carriers exercise editorial discretion,” Yoo writes. “These cases embrace the idea that common carriers have the First Amendment right to offer these services.”

Additionally, courts have indicated that the only time the government may mandate access to public accommodations is when doing so would neither interfere with an entity’s expressive activity nor force an entity to associate itself with a message with which it disagrees. Yoo underscores that in both Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. and Boy Scouts of America v. Dale, state statutes that specifically declared the respondents to be

public accommodations “played no role in the constitutional analysis”; instead, what mattered was the effect on the respondents’ speech. What are the Implications for Net Neutrality, Digital Platforms, and Privacy?

Jurisprudence in this area carries heavy implications for several contemporary areas of policy and debate, most notedly net neutrality, social media platforms, and digital privacy.

Beginning first with net neutrality, Yoo writes that “ISPs have the First Amendment right to deploy specialized services that limit access or give preferential treatment to specific content for editorial or commercial reasons.” Because ISPs exercise discretion over the specialized services they offer, they must be considered outside the deferential standard applied to common carriers and thus be subject to heightened scrutiny.

Further, whether a digital platform is considered a “common carrier” depends on whether it holds itself out as serving all members of the public without making individualized business decisions.

“Absent a major change in business practices, social media companies exercise too much discretion over the content they host to be regarded as common carriers or public accommodations,” Yoo writes.

Finally, in ACA Connects – America’s Communications Ass’n v. Frey, a lower court applied the Supreme Court’s decision in Sorrell to recognize that the First Amendment protects ISPs’ ability to use consumer data for marketing purposes. Taken together with other decisions, this holding suggests that actors beyond ISPs may also enjoy significant constitutional rights in the data derived from their services, though as Yoo notes, “the exact contours of these rights remain unclear.”

In summation, Yoo emphasizes that both common carriage and public accommodations jurisprudence “tell[] an amazingly consistent story.” in both cases, “little is gained by simply declaring an actor to be a common carrier or public accommodations. . . . [T]he key is whether the actor asserts individualized business and editorial judgment over the content it carries. The mere attempt to attach a label without more accomplishes little.”