To understand common carriage law, one needs be as fluent in litigation related to
1. common carriage by a trucker,
2. common carriage by taxicab,
3. common carriage by rail,
4. common carriage by airplane,
5. common carriage by ship,
6. common carriage by a roller coaster,
7. common carriage by letter carrier,
8. common carriage by bicycle courier, and
9. “work for passage” common carriage by freighter
as one is fluent in federal telecommunications common carriage cases.

Candeub’s expert report had more legal and historical detail than I would have included. This report does not to my mind capture the magnitude of the revolution that telegraphy presented and created in common carriage technology and law. To my mind, legal and technological developments subsequent to passage of the Mann-Elkins Act of 1910 have only consisted of minor matters of detail.

I don’t want to analyze the flaws of each brief, but with an exception here and there (e.g. Candeub), no one seems to have addressed or surveyed relevant common carriage services like voice teleconferencing, data teleconferencing, snail mail, mass mailing, telex, email, file transfer, mass e-mailing, mass announcement, SMS, Twitter’s SMS-based tweet service, pneumatic tube mail, and others.

I would probably have mentioned the great USPS email controversy. Please check out the section “USPS E-COM”.

The following passage is sloppy.

In other words, before E-COM could get launched, the FCC said, “if you are going to do this, then you are under our jurisdiction, and you are going to have to file a tariff for the offering of your common carriage service.” The FCC said that email, whether from the USPS or privately offered, is a form of common carriage – they don’t say that anymore.

I would have written the passage more precisely.

In other words, before E-COM could get launched, the FCC said, “if you are going to do this, then you are under our jurisdiction, and you are going to have to file a tariff for the offering of your common carriage service.” [Back then the] FCC said that email, whether from the USPS or privately offered, is a form of [telecommunications] common carriage. [Today the FCC no longer puts email service in the category of an FCC regulated telecommunications service.]

Only Professor Hamburger mentioned Primrose v. Western Union Telegraph, 154 U.S. 1, 14 S. Ct. 1098 (1894), whose controversy relates to an acceptable way to stipulate a service level when carriage for fee is held out to the public under uniform terms. Ex post facto application of community standards or similar stipulation
1. is an unacceptable way to specify service level,
2. is discriminatory, and
3. seems problematic because of 42 U.S. Code §§ 1981-1983.

A contract carrier offers individualized service with an individualized contract to a customer.

A carrier can’t hold out carriage to the public under uniform terms that state the carrier will discriminate in some way against some subgroup of the public.

Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138 (1896) allowed a state railroad common carrier to segregate passengers as long as the passenger common carriage service was equal.

Do I have to point out Plessy v. Ferguson has been overruled by subsequent decision of SCOTUS?

Unfortunately, in Martillo v. Twitter I am way outside my comfort zone, which comprises expert reports, expert testimony, patent application prosecution, and drafting documents that will be submitted to the FCC after they have been reviewed by an attorney.

Yet Olivia (my fiancée) and I probably addressed the major issues related to common carriage technology and law in the documents of the litigation.

[I am to be blamed for typos and infelicitous phrasing. I can’t write something concisely in 10 words when I can write it in 100 words. I was under time pressure because of death of Martin, who was supposed to represent Olivia, and the Covid situation stressed me out because it wiped out my business.]

List of Important Litigation Documents
[We are counter-punchers and the later Reply Briefs are probably better argued than the earlier filings.]

1. Original Complaint [1:21-cv-11119-RGS]
2. District Court Orders
3. Memorandum in Support of Motion for Reconsideration
4. Reconsideration Exhibits
5. District Court Reconsideration Denial
6. Appellant’s Brief [21-1921]
7. Appellant’s Appendix
8. Petition to SCOTUS for Certiorari to the Court of Appeals of the First Circuit Before Judgment [21–6916]
9. Petition’s Appendix
10. Twitter’s Appellee’s Brief
11. Appellant’s Reply Brief to Twitter
12. Medium’s Appellee’s Brief
13. Appellant’s Reply Brief to Medium

In Medium’s Appellee’s Brief [21-1921], Medium questioned whether and how a social medium defendant violated 42 U.S. Code § 1982 – Property rights of citizens.

I explained in the Appellant’s Reply Brief to Medium’s Appellee’s Brief [21-1921].
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On this page in the District Court Orders [1:21-cv-11119-RGS], the Judge incorrectly asserts that I have no monetary claim against the six social medium Defendants.
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Here are MGL c. 156 s. 1 & s. 2.
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Personal literary property constitutes “other property” under s. 1. Not only do I have a monetary claim according to against the social mediums by s. 2, but I have a large claim. When the Original Complaint is rewritten into an Amended Class Action Complaint, the monetary claim will become astronomical, and I want the award to go to helping Palestinian refugees.

In the Appellant’s Reply Brief to Twitter’s Appellee’s Brief [21-1921], I explain the difference between common carriage of analog voice and electronic message common carriage of digital literary property in order to demonstrate the irrelevancy of the American Telephone & Telegraph Co. v. IMR Capital Corp., 888 F. Supp. 221 (D. Mass. 1995).
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On this page in the District Court Orders [1:21-cv-11119-RGS], the Judge incorrectly asserts that I have no monetary claim against the six social medium Defendants.
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Here are MGL c. 156 s. 1 & s. 2.
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Personal literary property constitutes “other property” under s. 1. Not only do I have a monetary claim according to against the social mediums by s. 2, but I have a large claim. When the Original Complaint is rewritten into an Amended Class Action Complaint, the monetary claim will become astronomical, and I want the award to go to helping Palestinian refugees.

In the Appellant’s Reply Brief to Twitter’s Appellee’s Brief [21-1921], I explain the difference between common carriage of analog voice and electronic message common carriage of digital literary property in order to demonstrate the irrelevancy of the American Telephone & Telegraph Co. v. IMR Capital Corp., 888 F. Supp. 221 (D. Mass. 1995).
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I almost have to wonder whether the Cato Institute secretly works for Texas.

According to the Cato Institute, a social medium
1. holds out carriage to the public according to uniform terms to everyone (including work or barter for carriage),
2. accepts a digital text message for carriage, and then
3. sometime later after reading the message and according to discriminatory “community standards” decides whether to complete the delivery or to accept a future digital text message for carriage.

[What if the “community standards” included a community rule of not providing service to a nonwhite like my fiancée, to a Palestinian like my fiancée, to an Arab like my fiancée, or to a Muslim like my fiancée?]

The Cato Institute could hardly make a more pellucid admission that the social medium is a common carrier which unlawfully discriminates in providing common carriage.

Doesn’t there seem to be a wee issue with the following statutes?
1. 42 U.S. Code § 1981 – Equal rights under the law
2. 42 U.S. Code § 1982 – Property rights of citizens
3. 42 U.S. Code § 1983 – Civil action for deprivation of rights

I am not a lawyer, but for 40 years I have worked on common carriage issues, which are associated with a PSPDN or with electronic digital message transmission.

Electronic digital message common carriage caselaw goes back to the 1840s in the USA and to the 1830s in the UK. Telegraph networks are sometimes said to constitute the Victorian Internet.

[I am qualified to provide expert testimony on the subject. I was working with an attorney, who was supposed to represent my Palestinian fiancée qua plaintiff in the case against the social mediums. I could not be an expert in her case, but I could have helped her attorney find an expert at my level. The attorney died, and we improvised.]

Here’s my take on a social medium common carriage from Petition to SCOTUS for Certiorari to the Court of Appeals of the First Circuit Before Judgment [21–6916].
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The CDA says nothing about either editorial discretion or common carriage. It does say when an Interactive Computer Service (ICS) cannot be considered to be a publisher, but says an ICS is a publisher only if one uses the logical fallacy of denial of the antecedent to interpret the statute.

From Petition to SCOTUS for Certiorari to the Court of Appeals of the First Circuit Before Judgment [21–6916].
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In District Court I spent a good deal of time explaining that an ICS can simultaneously be a distributor (i.e., a not publisher) and a common carrier.

From Memorandum in Support of Motion for Reconsideration [1:21-cv-11119-RGS]
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It took some time for Twitter’s counsel to understand the argument, but the counsel of A Medium Corp. and the Court of Appeals grasped my point.

[Twitter’s counsel also seemed to be confused by my argument, which pointed out that an ICS could provide common carriage even though it was not a telecommunications common carrier according to the FCC.]

I doubt anyone on the Court of Appeals for the Fifth Circuit read my filings, but there is certainly no Constitutional problem in demanding transparency from a common carrier with respect to denial of common carriage. Such denial is tantamount to removal of a user or of his content.

Common carriage law is so simple with respect to denial of common carriage that it is hardly surprising that the Court of Appeals provided a one sentence order.

I have put the common carriage argument before SCOTUS. I don’t know who read it, but I consider Alito probably at least to be sympathetic to the argument. Grant of cert was unlikely because there was nothing reviewable from the Court of Appeals and very little in the way of reviewable District Court materials.

I did notice that the appellate litigation was motoring along until the District Court and the Court of Appeals received communication from SCOTUS.
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A net neutrality proponent does a social medium ICS no favor by asserting that HB20 constitutes unconstitutional “abridging the freedom of speech, or of the press”.

HB20 is unnecessarily complex. MGL c. 159 s. 1 & 2 are short, sweet, and more than necessary to nail a social medium ICS.
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I recommend that every state incorporate the Massachusetts common carriage statutes into its state law.

[A tweet, post, comment, reply, etc. constitute digital personal literary property, which the social medium ICS electronically carries from one user to another. The caselaw of message common carriage of digital personal literary property was already extensively elaborated by 1860.]

It took a while, but eventually Twitter’s counsel seemed to grasp that in a class action Twitter would be liable for hundreds of billions of dollars of penalties under the Massachusetts statutes even at the $50 penalty for denial of common carriage.

The social mediums make a lot of money by common carriage. They must obey common carriage law. I pointed out that it’s easy for a social medium to avoid common carrier status.

A common carrier holds out common carriage to the public for a fee and under a uniform contract to anyone requesting common carriage. The fee can be paid by money, barter, or work. Common carriage service may be offered in tiers as a social medium may provide a plurality of service levels.

In order to escape common carriage obligations, a social medium need only apply the traditional “Letters to the Editor” model, in which a user sends his content to a social medium editor, who then picks and chooses which content to distribute, because under this model the social medium does not offer carriage to another user.

A social medium can also avoid common carrier status if it refrains from monetizing “eyes on a page” because a user would no longer be working or bartering for common carriage.

Despite erroneous caselaw like
1. Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) [the plaintiff in effect confused the movie with the movie theater] and
2. Lewis v. Google LLC, No. 20-16073 (9th Cir. Apr. 15, 2021) [in effect the movie audience is confused with the movie theater],
it is easy to show that a social medium is a place of public accommodation under the 1964 Civil Rights Act.

In the Memorandum in Support of the Motion for Reconsideration, I point out the complete irrelevance of Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994).
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From Appellant’s Reply Brief to Twitter’s Appellee’s Brief [21-1921].
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If two kids are given permission to set up a lemonade stand in the food court of a shopping mall, they come under the 1964 Civil Rights Act. Likewise, every social medium comes under the 1964 Civil Rights Act.

I point out in Petition to SCOTUS for Certiorari to the Court of Appeals of the First Circuit Before Judgment [21–6916] and in practically every document filed during the litigation that CDA caselaw wipes out all federal and state anti-discrimination law.
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SCOTUS has to overrule practically all CDA caselaw because of the damage this caselaw does to the corpus of federal anti-discrimination law.