Platform Regulation & Speech
Social Media Platforms as Public Utilities
The largest social media platforms now serve as the primary infrastructure of American public discourse. They are the square, the printing press, and the telephone exchange compressed into a handful of privately owned networks. Their legal classification, however, is that of a private publisher — shielded by a 1996 statute written when the internet was a bulletin board. This case examines whether that classification still fits, what doctrine governs when it does not, and what reform mechanisms exist.
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Work in progress
This case is under active development. All pages are being written, expanded, and fact-checked on an ongoing basis — content and coverage are subject to change.
The structural gap
American law has long recognised that some private property, when it becomes essential infrastructure used by the general public, can be regulated by the state as a public utility. Railroads, telegraph networks, telephone exchanges: each was once a privately owned novelty; each eventually became subject to common-carrier obligations requiring non-discriminatory access. The legal mechanism has existed since at least Munn v. Illinois (1877).
Social media platforms of sufficient scale now occupy an analogous position in the information economy. A person or organisation effectively excluded from the major platforms is excluded from a dominant portion of modern public discourse — not from a single publisher’s pages, but from much of the medium itself. The question this case examines is whether the legal category that fits the historical pattern — common carrier, public utility — has been, should be, or can be applied to these platforms. This reading is contested: serious commentators argue platforms remain editorial actors rather than infrastructure, and that alternative channels meaningfully constrain the exclusion claim.
What makes this a legal question, not a political one
The common-carrier argument does not depend on any view of what content platforms should or should not carry. It is a structural claim about the relationship between private ownership of essential infrastructure and public access to that infrastructure. The same argument was made about railroads by farmers who wanted to ship grain, about telephone companies by subscribers who wanted non-discriminatory rates, and about broadband providers during the net-neutrality debates.
The countervailing claim — that platforms exercise editorial discretion protected by the First Amendment — is equally structural. Whether platform curation is constitutionally protected speech is a question the Supreme Court has not yet finally resolved — in Moody v. NetChoice (2024), the Court vacated both lower-court decisions and returned them for proper facial-challenge analysis, while articulating First Amendment principles that substantially constrain the lower courts on remand. That question and the common-carrier question are linked: the answer to one substantially constrains the answer to the other.
What this case examines
- The common-carrier doctrine — its history, its statutory basis, and the conditions under which courts have applied it to previously unregulated industries
- The publisher’s shield — Section 230 of the Communications Decency Act, the publisher/distributor distinction it codified, and the internal tension in how platforms invoke it
- The NetChoice remand — the 2024 Supreme Court decisions in Moody v. NetChoice and NetChoice v. Paxton and what the Court left open
- State utility designation attempts — Texas HB 20, Florida SB 7072, and the litigation history of state efforts to impose common-carrier obligations on platforms
- Paths to reform — the five principal mechanisms by which utility-style obligations could be imposed and the legal and political obstacles each faces
Documentation status conventions
Throughout the pages of this case, factual claims are tagged in one of three ways:
- Documented — statute, case holding, regulatory text, or established legislative history. Citable to primary sources.
- Contested — a coherent argument with legal grounding that is disputed by serious authorities on the other side. Documented as a live debate, not endorsed as a resolved conclusion.
- Open — an empirical or legal question whose resolution has not been determined by the available record or current case law.
Last reviewed: 2026-05-22.
