There are simpler more obvious arguments against Section 230 caselaw.

The following argument could have been made by the pre-Breakup AT&T legal team.

Common Law Common Carriage

Internet exceptionalism is senseless. Common carriage has evolved to cover common carriers as diverse as ferries, barges, stagecoaches, railroads, telegraphs, telephony, the US Postal Service, FedEx, Amazon delivery, bicycle couriers, taxi or limo service (including Lyft, etc.), DoorDash (or similar common carriers), grocery common carriage service, pneumatic mail, trucker common carriers, some escalators, some elevators, a Ferris wheel, a roller coaster (or similar amusement park rides), air common carriers, telex, pager service, email service, SMS, MMS, container ships, pony express, etc. The list is endless.

There is no reason a social medium platform cannot fit into this eclectic group

Every social medium platform is a message common carrier of digital personal literary property as long as it holds out message carriage to the public under uniform terms for a fee, which may be barter (information collected about the user) or work for carriage (to wit, “eyes on a page” – an extremely valuable item).

The service, which a social medium platform provides, hardly differs from the common carriage service, which telegraph or telex provided.[1] The only major difference is a whizzier interface, (a) which the social medium platform downloads to the end user laptop computing device or (b) which is software (i) licensed from the social medium platform and (ii) pre-installed as an app on a mobile computing device in order to avoid the delay associated with downloading a webpage from a backend server.

A social medium platform provides

1. store-and-forward message switching and

2. temporary storage (bailment or hosting) of a message (digital personal literary property) within a backend server on its way to delivery to its destination by digital message common carriage.

The operations of store-and-forward message switching and temporary storage (bailment) of a message (personal literary property) are both traditional operations of message common carriage.

Bailment or hosting of digital personal literary property is not the speech of the social medium platform, and the social medium platform has neither editorial discretion nor distributor discretion with respect to bailment (hosting) except to a user, who understands neither basic common carriage law nor full-stack software engineering at the level of a PHOSITA (“Person Having Ordinary Skill In The Art” in the terminology of patent law).

If a social medium platform wishes to escape[2] the obligations that common carriage law imposes on the social medium platform, the social medium platform need only

1. cease to monetize eyes on a page and

2. cease trading in the information that it collects from a user in exchange for message common carriage service.[3]

In other words, as long as a social medium platform makes money from common carriage, it is legally and Constitutionally obligated (by Amendment IX) to obey the law of common carriage.

Amendment IX gives the public the Constitutional right to non-discriminatory common carriage. A common carrier has no right to refuse common carriage to a customer except for special circumstances of unfitness or lack of space.[4]

A common carrier is a person who holds himself out as willing to serve any shipper who offers him a reasonable fee to transport the kinds of goods he professes to carry to a place he professes to serve, provided they were not unfit and his conveyance was not already full. See Lovett v. Hobbs, 2 Show. K.B. 127, 89 Eng. Rep. 836 (K.B. 1680); Jackson v. Rogers, 2 Show. K.B. 327, 89 Eng. Rep. 968 (K.B. 1683).

By definition, a common carrier has to serve all comers. If he wrongfully refuses to accept a consignment, he is suable in tort. See Jackson v. Rogers, 2 Show. K.B. 327, 89 Eng. Rep. 968 (K.B. 1683).

Denial of common carriage is a self-evidencing violation and deserves draconian penalties because common carriage law is the root and beginning of anti-discrimination law, without which modern civil society does not function.

Zeran[5]-based caselaw,

1. which gives a social medium platform unfettered editorial discretion[6] to discard digital personal property temporarily stored on a backend server of a social medium platform or to deny message common carriage of a user’s digital personal literary property,

2. which gives a social medium platform the right to deny common carriage to a member of the public, and

3. which renders a social medium platform immune to publisher and to distributor libel by removing the distinction between a distributor and a publisher[7],

patently violates the US Constitution Article I Section 1 (see below), US Constitution Amendment I (see below), and US Constitution Amendment IX. This caselaw takes away the Amendment IX rights of a member of the public to non-discriminatory common carriage and to sue for libel even though these two types of rights were long established at the time of the ratification of the US Constitution by the original thirteen colonial states.

A social medium platform has no Amendment I right to refuse message common carriage of a user’s digital personal literary property because hosting is bailment and not the speech of the social medium platform, which performs message common carriage.

Hosting is Bailment Not Speech

The following question and answer clarify why hosting is bailment and not speech.

Question: Does a notice board accessible to passing members of the public – by being in the entrance of a supermarket for example – offer a common carriage service? If not, how does Twitter differ from that in function, other than by being a service attached to a network that offers public access?

Answer: The described public notice board is a material board to which a member affixes a material message. The material board provides neither message switching nor message common carriage. Twitter provides store-and-forward message switching as well as message common carriage among users. Twitter temporarily stores a message in a backend database system (hosting or bailment) while the message is on the way to an end-user by means of message common carriage.

Discussion: The question confuses the frontend model (a pure concept or abstract idea[8]) with a material notice board. The frontend model makes it easier for an end user to interact with Twitter’s system.

In other words, Twitter’s system has no similarity whatsoever to the material notice board and the question shows a lack of comprehension of Internet technology.[9]

Hosting is not speech of a social medium platform. Hosting is bailment, and from the standpoint of common carriage law, storing digital personal literary property in a backend server of the social medium platform hardly differs from temporary storage of a paper letter in a satchel at a USPS sorting location or at a FedEx office until the paper letter can be sent on its way to its destination by common carriage.

Notes

1 19th century telegraph networks constituted the “Victorian Internet” and occasioned development of a legal framework that would apply well and effectively to the 21st century Internet if only US Courts applied this long-established settled straightforward caselaw.

2 The common carriage framework is not inflexible. A common carrier may offer a plurality of standard service tiers.

3 The digital personal literary property or intellectual property, of which a social medium platform is bailee and which the social medium platform distributes by message common carriage to other users, serves in barter for service. Bailment of digital personal literary property is valuable to the social medium platform because the social medium platform uses this intellectual property of a user of the social medium platform to attract more eyes to the website of the social medium platform.

4 47 U.S. Code § 230(c)(2)(A) identifies certain types of digital personal literary property that are unfit in the context of the Internet. U.S. v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2D 435 (2010) provides guidance with respect to restrictions that a message common carrier (not just a social medium platform) may apply to user speech or digital personal literary property, for which a user seeks common carriage.

5 Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).

6 Neither the phrase “editorial discretion” nor the phrase “common carrier” is mentioned in 47 U.S. Code § 230.

7 See the dissent in Doe v. America Online, 783 So. 2d 1010, 1013 n.6 (Fla. 2001).

8 Abstract idea in this context has some similarity to the abstract idea exception to patent eligibility. A discussion of confusion of virtual reality with physical reality can be found in Joachim’s Reply to Twitter’s Appellee’s Brief , which can be found in PACER or via its QR code in Appendix F – QR Codes (p. xlix).

9 The terminology of full-stack software engineering is somewhat confusing. A software engineer generally uses the Model-View-Controller design pattern to design a web or cloud service. The end user invokes a browser on his end host (a laptop or mobile computing device) to access the service. A single page application is frontend social medium platform software that runs in a web browser to access the service of the social medium platform – an older design might use Jakarta (or Java) Server Pages, but such a design does not affect the argument. A mobile device typically runs a mobile app (provided by the social medium platform) to complete the common carriage service, which the social medium platform’s backend provides.