The 'Common Carrier' Solution to Social-Media Censorship

Richard Epstein highlights potential competition policy issues around social media firms limiting access to their platforms, but still thinks a market based solution is best policy, “…But the nondiscrimination side of the formula is still with us,” Mr. Epstein says, “and it is that duty that’s at issue today with Trump and Twitter. And if the monopoly constraint applies, then it is not a defense to say that these companies are privately owned.”Mr. Epstein admits the tech companies aren’t “pure monopolies in the way in which you might’ve thought in the 17th century, because Twitter’s got some competition from Facebook.” But there is still pushback, he says, when “these companies decide that they’re going to exercise their sovereign power as if they were ordinary private companies, because people believe that there are strong monopoly elements associated with their operation.” This view is shared by both left and right: “As these companies become more imperious, there’s a greater insistence that they be treated as monopolies.”The argument becomes stronger, Mr. Epstein says, “when those who are policing the entry into the networks” make their political preferences clear: “You cannot be both a platform operator and a partisan. Jack Dorsey is not, shall we say, a neutral party.” Mr. Epstein thinks Mr. Zuckerberg is also partisan, but “in a cagey way. He is certainly no Republican, but he is smart enough to mute his hostility relative to, say, Dorsey.”Mr. Epstein has two recommendations for Twitter and Facebook, which he’s sure they won’t follow: “First, they should take the control of access to their networks and give it to somebody who doesn’t care about the outcome. And then, to have a relatively narrow, consistently applied, definition of what counts as violence and threats of force.” In regard to the latter point, Mr. Epstein points to how Ayatollah Ali Khamenei, who has more than 880,000 Twitter followers, “gets to promise the death of America on his account 20 times a day. All sorts of other zealots get to do that. You can’t select the violence you don’t like from the violence that you do like, or choose to ignore.”…Yet such a market solution may be the best we can hope for. “The safest control against a monopoly—in every market that you’d care to invent—is new entry,” Mr. Epstein says. In any case, who would the enforcers be for a potential nondiscrimination rule against social-media monopolies? The answer underscores the unlikelihood of such action: “It’s going to be essentially the Biden administration telling the Twitter company that they can’t discriminate against Trump.”..”

The ‘Common Carrier’ Solution to Social-Media Censorship

The punitive banishment of Donald Trump from Facebook and Twitter has met with almost uniform approval from the president’s critics. So has the decision by Apple and Google to remove Parler, a Twitter alternative favored by Mr. Trump’s supporters, from their app stores. Many Democrats see these actions as a righteous and justified silencing, especially in light of Mr. Trump’s encouraging words for the mob that violently invaded the Capitol on Jan. 6. Even many of Mr. Trump’s supporters concede that Twitter and Facebook owe him no platform—that only the government has a legal obligation to respect the First Amendment.

Richard Epstein takes a different view. The gagging of the president by America’s digital behemoths provokes in him a mix of indignation and distress. A professor at the New York University Law School, he is the foremost libertarian legal scholar in the common-law world. (Mr. Epstein, 77, directs NYU’s Classical Liberal Institute, where I am a fellow.) We converse by Zoom, and he says that he’d tell Jack Dorsey and Mark Zuckerberg of Twitter and Facebook, respectively, to “give Trump his account back.”

The punitive banishment of Donald Trump from Facebook and Twitter has met with almost uniform approval from the president’s critics. So has the decision by Apple and Google to remove Parler, a Twitter alternative favored by Mr. Trump’s supporters, from their app stores. Many Democrats see these actions as a righteous and justified silencing, especially in light of Mr. Trump’s encouraging words for the mob that violently invaded the Capitol on Jan. 6. Even many of Mr. Trump’s supporters concede that Twitter and Facebook owe him no platform—that only the government has a legal obligation to respect the First Amendment.

Richard Epstein takes a different view. The gagging of the president by America’s digital behemoths provokes in him a mix of indignation and distress. A professor at the New York University Law School, he is the foremost libertarian legal scholar in the common-law world. (Mr. Epstein, 77, directs NYU’s Classical Liberal Institute, where I am a fellow.) We converse by Zoom, and he says that he’d tell Jack Dorsey and Mark Zuckerberg of Twitter and Facebook, respectively, to “give Trump his account back.”

Mr. Epstein emphasizes that he’s been frequently critical of Mr. Trump and called on the president to resign as early as February 2017: “I thought his style was so confrontational that you couldn’t keep peace in the land.” Yet he’s been struck by the “one-sided” nature of the debate over Mr. Trump’s ban from social media, focusing almost solely on the First Amendment and how it “applies only to Congress and to the states and doesn’t apply to private parties.” Largely absent from the debate, he says, has been the word “monopoly.”

“Look,” he says, “there are private companies and there are private companies.” The conventional argument about the First Amendment is right when it comes to a company like Simon & Schuster, which pulled the plug on a book by Sen. Josh Hawley of Missouri in disapproval of his challenge to the presidential election results. Mr. Hawley can take the book somewhere else. “There are lots of alternatives, lots of publishers of one kind or another,” Mr. Epstein says. If it turns out that publishers all collude so that none will take him, Mr. Epstein says, “that gets you into an antitrust violation. So there’s a remedy.”

The situation with Mr. Trump and the social-media giants is different. If they are monopolies—not “an easy question,” Mr. Epstein acknowledges—the common-law rule is that “no private monopoly has the right to turn away customers.” It must take them all on “fair, reasonable and nondiscriminatory” terms. This principle, which sometimes goes by the acronym Frand, dates back to the writings of Sir Matthew Hale (1609-76), an English jurist.

“The question of media control,” Mr. Epstein says, “can only be understood by going back to the historical regulation of common carriers and public utilities.” Hale didn’t use the word “monopoly,” but instead wrote of a party “affected with the public interest,” such as a harbor with only one landing space. Its owners, he argued, had a duty to serve on terms that were fair, reasonable and nondiscriminatory. “They couldn’t just charge what the market could bear, but had to face that constraint.” This notion of “rate regulation,” Mr. Epstein says, was incorporated into American law in 1876, when the Supreme Court decided in Munn v. Illinois that the state had the authority to regulate a grain warehouse’s prices.

Munn began the development of a body of law concerning “common carriers,” such as railroads, which offer services to the general public for which there is no alternative. In Mr. Epstein’s view, the near-monopoly position of Twitter and Facebook may generate common-carrier obligations. “These are common-law rules,” he says. “It’s not as though you can post a little notice on top of your website that says, ‘Not subject to common-carrier rules.’”

Unlike harbors, warehouses and railroads, social-media monopolies don’t raise an issue of rates. Their content is free. “But the nondiscrimination side of the formula is still with us,” Mr. Epstein says, “and it is that duty that’s at issue today with Trump and Twitter. And if the monopoly constraint applies, then it is not a defense to say that these companies are privately owned.”

Mr. Epstein admits the tech companies aren’t “pure monopolies in the way in which you might’ve thought in the 17th century, because Twitter’s got some competition from Facebook.” But there is still pushback, he says, when “these companies decide that they’re going to exercise their sovereign power as if they were ordinary private companies, because people believe that there are strong monopoly elements associated with their operation.” This view is shared by both left and right: “As these companies become more imperious, there’s a greater insistence that they be treated as monopolies.”

The argument becomes stronger, Mr. Epstein says, “when those who are policing the entry into the networks” make their political preferences clear: “You cannot be both a platform operator and a partisan. Jack Dorsey is not, shall we say, a neutral party.” Mr. Epstein thinks Mr. Zuckerberg is also partisan, but “in a cagey way. He is certainly no Republican, but he is smart enough to mute his hostility relative to, say, Dorsey.”

Mr. Epstein has two recommendations for Twitter and Facebook, which he’s sure they won’t follow: “First, they should take the control of access to their networks and give it to somebody who doesn’t care about the outcome. And then, to have a relatively narrow, consistently applied, definition of what counts as violence and threats of force.” In regard to the latter point, Mr. Epstein points to how Ayatollah Ali Khamenei, who has more than 880,000 Twitter followers, “gets to promise the death of America on his account 20 times a day. All sorts of other zealots get to do that. You can’t select the violence you don’t like from the violence that you do like, or choose to ignore.”

Ultimately, Mr. Epstein says, those berating Twitter and Facebook for their abuse of “monopoly power” will lead the market to rebel, as happened when entrepreneurs responded to railroad monopolies by developing spur lines and other alternatives. “And that’s Parler,” he says, “and Gab,” another upstart that is kicking at Mr. Dorsey’s shins.

Yet Parler is in a bind. Apple’s refusal to carry its app means that it can’t get onto an iPhone. “The iPhone is 40% of the market,” Mr. Epstein says. “So unless people with iPhones have two phones—which is a huge inconvenience—they’re going to be denied the service altogether.” Gab has “decided to build a fully integrated network, their own servers—to become completely self-sufficient.”

This gives rise to a paradox. “You assert there’s a monopoly,” Mr. Epstein says, “and then you act to do something about it, and then you have an industry that’s competitive, at least in part. But it’s imperfect competition, because these guys don’t have the reach.”

Mr. Trump had 89 million Twitter followers. “They are not going to go away, whether Twitter likes them or not,” Mr. Epstein says. “So he’s literally going to start to integrate with another network.” Mr. Epstein sees this as “a funny chicken-and-egg situation”: “Twitter is, we’re saying, a serious monopoly we have to regulate. But now that it’s abusive, it’s no longer a monopoly because we have these other guys coming in, and they’re going to try to do Twitter in.”

Mr. Epstein warns of ugly political consequences: “What you’re seeing now is an unwillingness of companies like Twitter and Facebook to tolerate conservative talk on their networks. What you’ll now get is conservative networks and liberal networks, and they won’t overlap.” This will heighten political polarization, as “each group starts to listen to its own, and they get madder and madder about what’s going on.”

Yet such a market solution may be the best we can hope for. “The safest control against a monopoly—in every market that you’d care to invent—is new entry,” Mr. Epstein says. In any case, who would the enforcers be for a potential nondiscrimination rule against social-media monopolies? The answer underscores the unlikelihood of such action: “It’s going to be essentially the Biden administration telling the Twitter company that they can’t discriminate against Trump.”

Tunku Varadarajan, "The ‘Common Carrier’ Solution to Social-Media Censorship,"Wall Street Journal, January 15, 2021, https://www.wsj.com/articles/the-common-carrier-solution-to-social-media-censorship-11610732343