Holding Big Tech Accountable Is Both Constitutional and Conservative | Opinion

Recently, some right-of-center advocates have begun pushing back on Republican-led reforms that apply common carriage requirements on large tech platforms' content-moderation practices. These advocates' general concern is that proffering common carrier regulatory measures in this way somehow offends the First Amendment and is perhaps even anti-conservative.

However, holding tech companies accountable when they are restricting free speech is a fundamentally conservative value. This is especially true when large platforms cherry-pick situations in which they want to act like publishers—such as newspapers—without wanting to accept the legal responsibilities for publisher-like actions—for example, de-platforming or blocking content.

Tech advocates suing the State of Florida over its new provision that regulates these tech platforms—a rather extreme law, admittedly—provides a good demonstration of Big Tech doublespeak on the First Amendment. The advocates appear to leverage tech platforms' equivocal status as a "quasi-publisher" to advance their First Amendment claim. Their primary argument is that the Florida law unconstitutionally compels an internet platform to speak, in violation of constitutional law's compelled speech doctrine. The classic example of compelled speech is forcing students in public schools to salute the American flag and recite the Pledge of Allegiance.

Courts have also employed the compelled speech doctrine to protect traditional publishers (e.g., The New York Times or Newsweek) from state actions that would compel them to host content with which they disagree. The two leading cases on applying the doctrine to companies are Miami Herald Publishing Co. v. Tornillo and Pacific Gas and Electric Co. v. Public Utilities Commission (PG&E). In Tornillo, the State of Florida had given political candidates a "right to reply" to certain published articles they disagreed with—and required the original publisher of that article to publish the reply. The U.S. Supreme Court invalidated the law, finding that requiring a publisher (in this case the Miami Herald) to publish content it disagreed with was equivalent to compelled speech.

In PG&E, the California Public Utilities Commission disliked that power company PG&E included newsletters from its own perspective alongside customer bills. To try and get around Tornillo, the Commission ordered PG&E to include content from its critics on the envelopes that bore that customer's bills. Again, the Supreme Court found that this practice amounted to compelled speech: It required PG&E to publish speech alongside its own publication and penalized the company for expressing its own viewpoint.

In this photo illustration, the logos of
In this photo illustration, the logos of social media applications Messenger, WhatsApp, Twitter, MeWe, Telegram, Signal and Facebook are displayed on the screen of an iPhone on January 13, 2021 in Paris, France. Chesnot/Getty Images

However, internet platforms claim they are "conduits of speech" that simply carry along a third party's message. Conduits of speech necessarily do not favor some content over any other, nor do they impose penalties on any internet platform on the basis of its published speech. This is similar to the long-standing, First Amendment-approved treatment of common carriers (such as FedEx or UPS) that are required to deliver your message or package irrespective of its (lawful) contents. It is why the First Amendment is not at issue for these common carriers: The government cannot compel the speech of an entity that claims it does not speak in the first instance.

And that's where the real rub of the First Amendment argument comes in: Large internet platforms like Google, Facebook and Twitter don't want to be publishers. They all have repeatedly relied on Section 230 of the Communications Decency Act to claim that they are not publishers of the content they host, and they have long relied on the civil immunity that provision offers to shield themselves from litigation and oversight. But the First Amendment doesn't guarantee civil immunity to large internet platforms, so there is no constitutional obstacle to requiring that if an internet platform wants to exert the same editorial privileges as a newspaper, it must also accept the responsibilities that come with that position. If there are carrots, there are must then also be sticks.

Although the Florida law may go a bridge too far in some circumstances, other conservative leaders, such as Supreme Court Justice Clarence Thomas and Senator Roger Wicker, understand the threat Big Tech poses to freedom of expression and have proposed reasonable common carrier measures as one possible solution. Common carriage done right can be a pragmatic and light-touch approach, responsibly reining in Big Tech to encourage more speech online while also limiting government's involvement in these companies' everyday business practices. Moreover, common carriage requirements would not require a complete rewrite of our antitrust laws—as some of the recent bills floating around in Congress would do.

Executing a "do nothing" approach does not make a person a conservative. But providing reasonable solutions to real Big Tech problems in order to protect internet users is.

Joel Thayer focuses his law practice on telecommunications, regulatory and transactional matters, as well as privacy and cybersecurity issues. He has represented clients in front of myriad legal and regulatory fora, including the Federal Communications Commission, Federal Trade Commission and federal administrative agencies. Additionally, he has also represented amicus curiae before the United States Supreme Court and advised technology companies on the European Union's General Data Protection Regulation.

The views expressed in this article are the writer's own.