Blake E. Reid (University of Colorado Law School) has posted The Incoherence of Common Carriage Law on SSRN. Here is the abstract:
As debates over the regulation of “Big Tech” Internet platforms— social media, search, and more—have swirled, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Common carriage is increasingly invoked as a talisman—particularly around proposals from conservative scholars, policymakers, and judges aimed at purported political discrimination by platforms—to justify the imposition of non-discrimination rules.
This Article questions the coherence of applying common carriage law to Internet platforms. It explains that the talismanic invocation of “common carriage” routinely conflates distinct questions around the designation of common carriers, the imposition of common carriage rules, and the First Amendment limitations thereon. Juxtaposing contemporary common carriage scholarship against a survey of the post-Civil War history of common carriage regimes in telecommunications law, it explains that, contrary to popular assertion, common carriage law encompasses a diverse collection of widely differing and difficult- to-reconcile classifications of “carriers,” “carriage” rules, and First Amendment doctrine.
Together, these classifications, rules, and doctrine provide an uncertain and incoherent base for developing and assessing regulatory regimes for Internet platforms. Applying this novel three-part framework, this Article makes a case for an alternative, context-sensitive approach to Internet regulations that evaluates the designation of carriers, the imposition of rules, and the role of the First Amendment on a granular basis that considers the vast degree of diversity that manifests across the Internet’s layer stack.
Very interesting and recommended.
