Notice to SCOTUS of Supplemental Authority

Netchoice provided SCOTUS with Notice of a Supplemental Authority in No. 21A720, NetChoice, LLC v. Paxton.

The Supplemental Authority is a recent decision from the Court of Appeals for the Eleventh Circuit.

The decision is too long to discuss right now in its entirety, but I have to address this passage (p. 41), which is so wrong that it is vicariously embarrassing to read.

The first version of the argument fails because, in point of fact, social-media platforms are not—in the nature of things, so to speak—common carriers. That is so for at least three reasons.

First, social-media platforms have never acted like common carriers. “[I]n the communications context,” common carriers are entities that “make a public offering to provide communications facilities whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing”—they don’t “make individualized decisions, in particular cases, whether and on what terms to deal.” FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979) (cleaned up). While it’s true that social-media platforms generally hold themselves open to all members of the public, they require users, as preconditions of access, to accept their terms of service and abide by their community standards. In other words, Facebook is open to every individual if, but only if, she agrees not to transmit content that violates the company’s rules. Social-media users, accordingly, are not freely able to transmit messages “of their own design and choosing” because platforms make—and have always made—“individualized” content- and viewpoint-based decisions about whether to publish particular messages or users.

Second, Supreme Court precedent strongly suggests that internet companies like social-media platforms aren’t common carriers. While the Court has applied less stringent First Amendment scrutiny to television and radio broadcasters, the Turner Court cabined that approach to “broadcast” media because of its “unique physical limitations”—chiefly, the scarcity of broadcast frequencies. 512 U.S. at 637–39. Instead of “comparing cable operators to electricity providers, trucking companies, and railroads—all entities subject to traditional economic regulation”—the Turner Court “analogized the cable operators [in that case] to the publishers, pamphleteers, and bookstore owners traditionally protected by the First Amendment.” U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 428 (D.C. Cir. 2017) (Kavanaugh, J., dissental); see Turner, 512 U.S. at 639. And indeed, the Court explicitly distinguished online from broadcast media in Reno v. American Civil Liberties Union, emphasizing that the “vast democratic forums of the Internet” have never been “subject to the type of government supervision and regulation that has attended the broadcast industry.” 521 U.S. 844, 868–69 (1997). These precedents demonstrate that social-media platforms should be treated more like cable operators, which retain their First Amendment right to exercise editorial discretion, than traditional common carriers.

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.

A business entity is a common carrier with respect to a service that it provides. It may not be a common carrier with respect to another service.

One investigates the service and not the business entity to determine whether common carriage is being offered.

Each major social medium ICS is a common carrier in at least one of its offered services.

The Supreme Judicial Court of Massachusetts explains.

Here is ¶ 46 of the Original Complaint of Martillo v. Twitter, Massachusetts District Court [1:21-cv-11119-RGS].

The Supreme Judicial Court has defined a common carrier in Mt. Tom Motor Line, Inc. v. McKesson Robbins, Inc., 325 Mass. 45 (Mass. 1949).

The distinction between a common carrier and a private or contract carrier has been frequently stated. Houle v. Lewonis, 245 Mass. 254. Haddad v. Griffin, 247 Mass. 369. Dion v. Drapeau, 254 Mass. 186. Commonwealth v. Boston Maine Transportation Co., 282 Mass. 345, 349. A common carrier is one who holds himself out as furnishing transportation to any and all members of the public who desire such service in so far as his facilities enable him to perform the service, while a contract carrier does not furnish transportation indiscriminately but furnishes it only to those with whom he sees fit to contract. Paine Furniture Co. v. Acme Transfer Storage Co., 290 Mass. 195. United States v. California, 297 U.S. 175. Steele v. General Mills, Inc., 329 U.S. 433. Ace-High Dresses, Inc. v. J.C. Trucking Co. Inc., 122 Conn. 578. Trudeau v. Pacific States Box Basket Co., 20 Wn.2d 561. This difference is recognized in § 2 of G.L. (Ter. Ed.) c. 159B, as appearing in St. 1938, c. 483, § 1, as amended, the chapter regulating the transportation for hire of goods by motor vehicles. A carrier may be a common carrier as to one part of its business and a special or contract carrier in another part. Terminal Taxicab Co. Inc. v. Public Utilities Commission of the District of Columbia, 241 U.S. 252. Commonwealth v. Boston Maine Transportation Co., 282 Mass. 345, 349. Rugg v. Davis, 320 Mass. 388, 391. A carrier may be issued a certificate to conduct the business of a common carrier and also a permit to engage in the business of a special or contract carrier. G.L. (Ter. Ed.) c. 159B, § 8.

About half of the controversy of Martillo v. Twitter is a dispute over Massachusetts General Laws c. 159 s. 1 & s. 2, which were enacted in 1869.

Here are the Massachusetts statutes.

MGL c. 159, s. 1 & s. 2

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.

In 1869 “other property” included personal digital literary property that a telegraph common carrier might electronically transmit or carry from one person to another person. A social medium platform hardly differs from a telegraph common carrier when the social medium platform electronically transmits or carries a personal digital literary property from one person to another.

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.

[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?]

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 a subsequent decision of SCOTUS?

I can provide an expert report on the technology of electronic transmission or carriage of personal digital literary property.

Candeub does not seem qualified to be a technical expert although like everyone nowadays, he is a user of technology that carries out electronic transmission or carriage of personal digital literary property

With respect specifically to the history of the engineering of electronic transmission or carriage of personal digital literary property, there are experts that know much more about this area than either Candeub or I know.

[I used Firefox for this comment. It evinced one bug, but it was less disastrous than the bug in Chrome. I hate current web technology.]

I made this comment from Firefox. From looking at the debugging information, I believe some of the caching logic in the latest version of Chrome is broken. The Firefox caching seems to work fine. I usually prefer Chrome to Firefox, but this latest Chrome version has too many annoying bugs. These bugs may only be present on Linux. I have not tried the latest Chrome version on a Mac or on Windows yet.

Don’t worry about it. I will switch to Firefox. I am giving up on this revision of Chrome in a Disqus commenting environment. This comment is the last made with Chrome.

I keep approving your comments, but I don’t have the time to act as your editor or technical support. Would you like me to stop approving your comments going forward?

I am sending a paper copy of the attached PDF to the Texas Attorney General.

Here are the salient points of this letter.

In re: Netchoice v. Paxton, Texas Western District, 1:21-cv-00840, Filed: September 22, 2021

Martillo v. Twitter, Massachusetts District, 1:21-cv-11119-RGS, Filed: July 7, 2021, shares a lot of the legal theory of Texas’ defense of HB20. The following description may be of interest.

Why Does the Texas Attorney General Care about Martillo v. Twitter?

About half of the controversy of Martillo v. Twitter is a dispute over Massachusetts General Laws c. 159 s. 1 & s. 2. Even though HB20 is much longer. The Massachusetts statutes are very similar to HB20. MGL c. 159, s. 1 & s. 2 were enacted in 1869.

Here are the Massachusetts statutes.

MGL c. 159, s. 1 & s. 2

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.

In 1869 “other property” included personal digital literary property that a telegraph common carrier might electronically transmit or carry from one person to another person. A social medium platform hardly differs from a telegraphic common carrier when the social medium platform electronically transmits or carries a personal digital literary property from one person to another.