Platform Regulation & Speech
The Common-Carrier Doctrine
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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.
Origins: “clothed with a public interest”
Documented
The foundational American statement of the common-carrier principle appears in Munn v. Illinois, 94 U.S. 113 (1877), in which the Supreme Court upheld an Illinois statute setting maximum rates for grain warehouses. Chief Justice Waite, writing for the majority, held that when private property becomes “clothed with a public interest,” it becomes “subject to public control.” The Court drew on English common-law precedent, particularly Matthew Hale’s 17th-century treatise De Portibus Maris, which identified certain businesses — ports, ferries, common carriers of goods — as so affected by the public interest that the Crown had historically regulated their rates.
The principle is sometimes stated in its Latin formulation: affectatio publicae iuris — an undertaking affected with the public interest. Whatever the formulation, the doctrinal content is the same: private ownership does not insulate a business from regulation when that business supplies a service the public cannot do without and has no practical alternative to.
The Granger Cases and railroads
Documented
Munn was decided as one of the “Granger Cases” — a group of six cases arising from Midwest state legislation regulating grain storage and railroad freight rates. Railroads in the 1870s occupied structurally the same position that the telegraph would occupy in the 1880s and that the telephone would occupy in the 1910s: a privately owned network with no practical substitute, over which commerce depended for its movement.
Congress codified common-carrier obligations for railroads in the Interstate Commerce Act of 1887, creating the Interstate Commerce Commission and establishing the requirement that rail carriers charge “just and reasonable” rates without “undue preference or advantage” to any person or class of persons. The Hepburn Act (1906) strengthened those obligations, and the Mann-Elkins Act (1910) extended ICC jurisdiction to telephone and telegraph companies.
Telegraph and telephone: the network-utility model
Documented
The Communications Act of 1934 consolidated federal regulation of interstate and international communications into a single statute and created the Federal Communications Commission (FCC). Title II of the Act defines “common carrier” as “any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy.” (47 U.S.C. § 153(11).) Title II common carriers are subject to non-discrimination obligations: they must “furnish . . . communication service upon reasonable request” (47 U.S.C. § 201) and are prohibited from “mak[ing] any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services” (47 U.S.C. § 202).
AT&T operated under a voluntary commitment agreement and regulated-monopoly framework from 1913 (the Kingsbury Commitment — a letter, not a formal consent decree) through its 1984 divestiture. The telephone network was, for most of the 20th century, the canonical American common carrier: universal service obligations, regulated rates, and non-discriminatory interconnection requirements.
Broadband and the Title II question
Documented
The Telecommunications Act of 1996 introduced a new statutory category: “information service,” defined as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Broadband internet access, the FCC determined in the early 2000s, was an information service — and therefore not subject to Title II common-carrier obligations.
That classification was contested for two decades. The FCC reversed it in its 2015 Open Internet Order (reclassifying broadband as a Title II telecommunications service), reversed the reversal in its 2017 Restoring Internet Freedom Order, then reversed again in its 2024 Broadband Internet Access Services Order. Courts have repeatedly reviewed these reclassifications. Following Loper Bright Enterprises v. Raimondo (2024) — which overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council and reduced judicial deference to agency statutory interpretations — the Sixth Circuit vacated the 2024 reclassification order in Ohio Telecom Association v. FCC (6th Cir. 2025).
Whether broadband providers are common carriers under Title II remains an unresolved question of statutory interpretation subject to ongoing litigation and administrative rulemaking. Social media platforms face a distinct but related question.
The extension argument: social media as common carrier
Contested
The argument that dominant social media platforms should be treated as common carriers rests on the same structural features that justified that treatment for railroads, telegraph, and telephone:
- Scale and network effects. Platforms of sufficient size have network effects that make them difficult or impossible to replicate. A competitor offering the same service to a smaller user base offers a qualitatively inferior service, because the value of the network derives from who else is on it.
- No practical substitute. For many categories of speech — political mobilisation, journalism, professional communication, public emergency notification — the major platforms have become infrastructure in the same functional sense that telephone exchanges were: the medium, not just a medium.
- Essential facilities. Under the essential facilities doctrine (developed in United States v. Terminal Railroad Association, 224 U.S. 383 (1912) and later antitrust cases), a monopolist that controls a bottleneck resource not reasonably duplicable by competitors may be required to provide access on non-discriminatory terms.
This argument is contested. Opponents argue that (1) alternative platforms do exist, (2) the platforms exercise genuine editorial discretion that the First Amendment protects, and (3) imposing common-carrier obligations on a platform whose “product” is the curation of expression is categorically different from imposing them on a railroad that hauls physical freight.
The First Amendment constraint
Documented
The Supreme Court has held that the government generally cannot compel private speakers to carry speech they do not wish to carry. Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995), held that a private parade organiser could exclude a group whose message it did not wish to convey. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), struck down a Florida right-of-reply statute as a compelled-speech violation.
However, the Court has also held that common-carrier obligations are constitutionally permissible in appropriate contexts. PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), held that a state could require a private shopping mall to permit petitioning without violating the First Amendment. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I), applied intermediate First Amendment scrutiny to must-carry obligations on cable operators and remanded for a developed factual record; the Court upheld those obligations in Turner II, 520 U.S. 180 (1997).
Which of these lines of precedent applies to social media platforms — the editorial-discretion line or the common-carrier line — is the open constitutional question that the Supreme Court has specifically declined to resolve in the NetChoice decisions. See the NetChoice remand.
