Common Carriage Anti-Discrimination Law Remains Completely Relevant in 2022

47 U.S. Code § 230 and reference in 2022 to an obsolete technology like the (dial-up) ICS/Internet On-Ramp makes no sense whatsoever.

47 U.S. Code § 230 says nothing about common carriage.

§ 230 does not refer to a social medium platform of 2022. It refers to a (dial-up) Internet On-Ramp of 1996. An Internet On-Ramp is an obsolete technology.

47 U.S. Code § 223(e)(6) tells us that an ICS/Internet On-Ramp cannot be called a common carrier in an active defense under 47 U.S. Code § 223, which is a statute that prohibits international or interstate obscene or harassing telephone calls.

It’s purely a prohibition under the interstate commerce clause and says nothing about intrastate obscene or harassing telephone calls.

The issue was important back then because a 1996 ICS/Interstate On-Ramp was a dial-up service.

These two decisions are not exactly on-point because they don’t deal with common carriage, but they do tell us that under certain circumstances a private actor has no valid claim of 1st Amendment infringement.

1. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035 (1980).
2. Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622, 114 S. Ct. 2445 (1994).

2022 Social Medium Platforms are so heavily supported by the US federal government that their claim of First Amendment infringement is even less valid than the claims of First Amendment Infringement were in Pruneyard or Turner.

There is always a typo.

I typed the following.

“Common carriage law attempts to remedy distribution.”

I meant the following.

“Common carriage law attempts to remedy discrimination.”

I put the above comment on Techdirt at Re: Re: Re: What Was an Interactive Computer Service in 1996?.

You will have to click the “click here” link to uncollapse my comment.

The nerds all freaked out and are desperately trying to show that a 2022 social medium platform meets the meaning of a 1996 Interactive Computer Service/Internet On-Ramp.

Nothing like a 2022 social medium platform existed in 1996.

For §230(f)(2) to mean what the nerds want it to mean, the clause would have to have been written in a way close to the following.

The term “interactive computer service” means

(B) a computer server that is in the Internet.

In obiter dictum the Judge misses the point.

Herein lies the difficulty in applying 18th century common law to 21st
century technology and commerce. In the internet age, information is often as valuable as goods. From telegraph, land-line telephones, cable television, and cellular telephones, the law of what is transported and how it is transported has developed over time. The State has alleged that Google carries information. For purposes of the present posture, the State’s allegations are sufficient.

Public accommodation anti-discrimination laws of the 1960s remains relevant today.

The Civil Rights laws of the 1860s and 1870s remain relevant today.

Common Carriage anti-discrimination law remains relevant.

Message common carriage is as old as common carriage. In the 17th century messages were letters or literary property. Nowadays messages are more often digital information. Common carriage of digital personal literary property starts sometime in the period from the 1830s through the 1840s. I like to learn historical technologies. Modern technology is really not so different from the 19th century technology.

With respect to tweet service, Twitter today does not do much more than a telegraph did in the 1860s. The image below comes from an 1860 legal compendium by Isaac Fletcher Redfield and was published by Little, Brown, 1869. Courts were already familiar with carriage of digital personal literary property by 1869.
https://uploads.disquscdn.com/images/ead0dac29450e6db65fdd4b80c7e39cd9f4e400c11cf98e544560ee005f5ab04.png

Finally, Congress has distinguished internet companies from common carriers. The Telecommunications Act of 1996 explicitly differentiates “interactive computer services”—like social-media platforms—from “common carriers or telecommunications services.” See, e.g., 47 U.S.C. § 223(e)(6) (“Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.”). And the Act goes on to provide protections for internet companies that are inconsistent with the traditional common-carrier obligation of indiscriminate service. In particular, it explicitly protects internet companies’ ability to restrict access to a plethora of material that they might consider “objectionable.” Id. § 230(c)(2)(A). Federal law’s recognition and protection of social-media platforms’ ability to discriminate among messages—disseminating some but not others—is strong evidence that they are not common carriers with diminished First Amendment rights.

The Court of Appeals for the 11th Circuit misinterpreted 47 U.S.C. § 223(e)(6).

I use a bicycle courier to deliver documents from Staples to the Boston Federal Court. This bicycle courier provides common carriage service to me.

In DC I use a carriage service that Staples arranges, but my agreement with Staples explicitly states that the carriage service works for me and not for Staples.

Amazon provides its own common carriage services for the delivery of goods. In Massachusetts, Amazon has complete common carrier liability and is always quick to replace a lost shipment.

Here are the critical statutes.

MGL c. 159

Section 1. Every common carrier of merchandise or other property shall receive, transport and forward all property offered for such purposes by other such carriers as promptly, faithfully and impartially, at as low rates of charge, and in a manner and on terms and conditions as favorable to the carrier offering such property, as he on the same day and at the same place receives, forwards and transports, in the ordinary course of business, property of a like description offered by persons other than such carriers. Such carrier shall not discriminate against any particular person or subject him to any undue or unreasonable prejudice or disadvantage. The supreme judicial or superior court shall have jurisdiction in equity to enforce this section.

Section 2. Every such carrier who wilfully neglects or refuses to comply with the preceding section shall forfeit not less than fifty nor more than five hundred dollars, to the person offering the property for transportation.