Richard A. Epstein explains common carrier obligations not to discriminate in this article. The state-made and/or judge-made law on this goes back to 1810. I’ll quote two paragraphs that make this clear:
“Historically, the nondiscrimination rule was applied first to common carriers and then to public utilities because both were typically supplied by firms that had a monopoly position in the relevant market, which meant that a refusal of the operator of those facilities to supply the service to all comers left disappointed customers quite literally out in the cold. Nonetheless, the antidiscrimination principle was confined to those cases, so that in competitive markets any person could for any reason offer whatever goods and services he or she had on whatever terms and conditions that he or she saw fit to make.
“The basic rule was stated with commendable clarity by Lord Ellenborough in England as early as 1810. In Allnutt v. Inglis, he wrote that in general every person ‘may fix what price he pleases on his own property,’ but ‘if he will take the benefit of a monopoly, he must as an equivalent perform the duty attached to it on reasonable terms.’ That principle worked its way into American public utility regulation as a constitutional matter in the 1876 decision of Munn v. Illinois. Over time its full elaboration denied that any common carrier or public utility had the power to turn away customers who had no reasonable alternative for obtaining service.”
Those who are being censored by FB et al or those who have various grounds for being against such censorship can argue that these “giants” have a monopoly position as common carriers (of communications), such that they may not discriminate against users. The giants can contend in opposition to this allegation that they literally created the market for communications carried on via their intermediation, and that in order to maintain that market, they reserve the right to discriminate against speech that alienates customers and subverts the wholesome market that is their intended product.
It is definitely not an open and shut case that the giants are either monopolists or common carriers. As long as entry is possible and baby competing companies are vying to grow rapidly into adults, both of which are the case, there is no common carrier justification to regulate the giants.
If the common carrier notion should be attempted, the government will be in the position of determining what speech is allowable and what is not! The situation will be analogous to the horrors inflicted by the Interstate Commerce Commission and the Federal Communications Commission, although much, much worse because they involve broad swathes of communications that are now being carried on at very low costs. The giants will rapidly capture any new regulatory body and proceed to implement regulations that destroy newcomers on any number of fanciful grounds that play well in the liberal media.
Communications are all-important to human beings. Lower costs of communicating are a huge net benefit to mankind, net of all the downsides enabled by communications. The last thing we want is communications being impeded by the powers of authorities on the grounds of filtering out bad speech, bad ideas, false ideas, false theories, mistaken speech, hate speech, heretical ideas, and so on. Do we want government to have the monopoly power to suppress a Galileo? Should government decide what’s in textbooks? Should government have the power to censor speech? One of the hallmarks of a totalitarian system is thought control through information and communications control.
The FB situation is uncomfortable, but government control is much worse. Government control thwarts our own personal control. At present, we are the masters, not the giants like Facebook. It may not seem that way when they ban Alex Jones and suspend Daniel McAdams. But we patronize these companies. We make them stand or fall. If government replaces our marketplace power with its political power, we will be facing a far worse situation than FB’s censorship. We will be at the mercy of government control of speech. We will be at the mercy of government regulations and bureaucrats.
1:51 pm on August 10, 2018
