Trump v. Twitter

Is Facebook like the Southern Pacific? Or not?

After four years of media ubiquity, Donald Trump has been comparatively out of the news these last several months. This is partly because he was evicted from the White House, but equally because he was booted off Twitter, Facebook and YouTube after the January 6 storming of the Capitol. The former president has not been happy in social-media exile, and on July 7 he became a lead plaintiff in a lawsuit against Twitter, Facebook and Google (the parent of YouTube), contending that his free speech rights have been violated by his exclusion.

Trump is not the first person to notice the great power the social media giants possess in the world of digital communications. Their bosses have been likened to the monopolistic moguls of America’s Gilded Age: John Rockefeller, Andrew Carnegie, J. P. Morgan.

But the most interesting and perhaps consequential analogy made against Twitter, Facebook and Google is not to the oil industry Rockefeller dominated, or to the steel business Carnegie controlled, or to the money trust Morgan created. The analogy that might get traction - not least for being made by Supreme Court Associate Justice Clarence Thomas - is between the modern social media and the early railroad industry.

Railroads appeared in the United States around the one-third mark of the nineteenth century. In those days corporate charters required the approval of state legislatures, and lawmakers asked what the public would receive in exchange for the limits on liability a charter conferred. The answer they required was that the railroad in question would act as a common carrier, willing to transport without favor the lawful goods of all with goods to ship.

The idea of common carriers ran back in English history to the seventeenth century, predating railroads. Highways and harbors were developed at common expense; carriers, in exchange for use of the infrastructure, pledged to serve the common interest. This did not preclude profits, but it did preclude discriminating among customers. When the British began building railroads, the idea was extrapolated to the new form of transport.

American railroaders imported British railroad technology, and American lawmakers imported the common carrier idea. It was first applied state by state, because railroads were incorporated state by state.

But it was federalized in 1887 in the Interstate Commerce Act. For decades farmers had complained that railroads, though competitive in broad markets, often acted as local monopolies. A given farmer typically had to ship his produce by the rail line than ran near his farm, or not ship at all. The farmers’ complaints led to state laws regulating railroads, but these “Granger laws” eventually ran afoul of the constitutional ban on state interference with interstate commerce.

The farmers responded by going to Congress, which in the 1887 act wrote the common-carrier concept into federal law. In the same spirit of regulation, Congress in 1890 passed the Sherman Antitrust Act, which outlawed monopolies and other combinations in restraint of trade. The common-carrier principle was essential to the model of regulation that informed the two laws. Congress ignored the local monopolies the railroads enjoyed but insisted on the level-playing field the common-carrier framework furnished.

The common-carrier principle was subsequently applied to telephone networks and other systems that resembled railroads in being natural monopolies. Clarence Thomas and others have lately extended the application to social media companies, arguing that the companies should be common carriers of speech and information. As Thomas put the matter in a concurring opinion in an April 2021 Supreme Court case: “In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way.”

The argument is plausible. Social media, on one hand, and railroads and other traditional common carriers, on the other, are alike in certain ways - the ways Thomas and people who think like him have noted.

But they are unlike in other ways, as the media companies point out. Words aren’t corn or wheat. They are intangible, and they are non-rivalrous (meaning that their consumption by one person doesn’t prevent their consumption by others). Words are protected by the First Amendment; corn is not.

Moreover, say the companies, the argument from common-carriage overestimates their monopoly power. They compete with each other for eyeballs and time, and they are regularly confronted by new challengers. The latest big thing, TikTok, caught them all by surprise; there are doubtless more where that came from (namely China).

And, the companies say, Thomas and the others misunderstand, or misrepresent, the social media business model. Twitter doesn’t sell tweets; Facebook doesn’t sell profiles and pages; Google doesn’t sell search. They all sell advertising, and in doing so they compete not only with each other but with newspapers, magazines, television networks, billboards and the insides of subway cars.

Will the common-carrier argument catch on? It’s hard to tell. Congress might step in, as it did in 1887, and impose the common-carriage principle on the social media companies. The courts - perhaps led by Thomas - will certainly have their say before a final verdict is rendered.

Except that no verdict will be final. Technology will continue to advance. Old analogies will made again, and new ones added. As ever with historical analogies, the devil will be in the details. Things today are like things in the past, but never exactly like them. The trick has always been to discern whether the similarities or the differences are the greater. That will always be the trick.