Can the President be Blocked on Twitter?: The Intersection Between Big Tech and Freedom of Speech on Social Media

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Can the President be Blocked on Twitter?: The Intersection Can the President be Blocked on Twitter?: The Intersection

Between Big Tech and Freedom of Speech on Social Media Between Big Tech and Freedom of Speech on Social Media

Jacqueline McDonald

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Part of the Law Commons

Can the President be Blocked on Twitter?: The Intersection Between Big Tech and Freedom of

Speech on Social Media

Jacqueline McDonald

I. INTRODUCTION

On January 8, 2021, after four years of addressing the nation from the account

@realDonaldTrump, Twitter permanently suspended President Donald Trump’s Twitter account

“due to the risk of further incitement of violence.”

Donald Trump’s presidency was

unprecedented in the sense that he was the first to use Twitter and social media to propel his

candidacy for office and continued to use it after being elected as a way to address the nation.

Prior presidents have had Twitter accounts and tweeted frequently, but none were actually

tweeting, someone on their press team was tweeting for them.

Even his Press Secretary, Sean

Spicer, in June 2017 stated that “President Trump’s tweets should be considered ‘official

statements by the President of the United States.’”

In May 2020, Twitter—for the first time

ever—added a warning label to two of Trump’s tweets for the potential spread of misinformation

surrounding voter fraud and mail-in ballots.

Over the next nine months and throughout the 2020

Presidential election, Twitter continued to add warnings to several of President Trump’s tweets.

J.D. Candidate, 2023 Seton Hall University School of Law; B.A. 2019 The Pennsylvania State University. Thank

you to my faculty advisor, David Opderbeck, for his guidance and support in the writing of this Comment.

Twitter Inc., Permanent Suspension of @realDonaldTrump, TWITTER (Jan. 8, 2021)

https://blog.twitter.com/en_us/topics/company/2020/suspension.

See e.g., President Obama Gets His Own Twitter Account, BBC NEWS (May 19, 2015)

https://www.bbc.com/news/technology-32780520.

Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 232 (2d Cir. 2019).

@TwitterSafety, TWITTER (May 20, 2020, 10:54 PM),

https://twitter.com/TwitterSafety/status/1265838823663075341; see also, Tara Law, In a First, Twitter Adds

‘Unsubstantiated’ Warning to 2 of President Trump’s Tweets, TIME (May 26, 2020, 8:33PM),

https://time.com/5842896/trump-warning-twitter-tweets-misleading.

@TwitterSafety, TWITTER, (JUN. 23, 2020, 2:46 PM),

https://twitter.com/TwitterSafety/status/1275500569940176897?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed

%7Ctwterm%5E1275500569940176897%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2F;

see also, Rachel Lerman, Twitter Slaps Another Warning Label on Trump Tweet about Force, WASH. POST (June, 23,

2020), www.washingtonpost.com%2Ftechnology%2F2020%2F06%2F23%2Ftwitter-slaps-another-warning-label-

trump-tweet-about-force%2F.

This culminated in the January 6, 2021 insurrection of the capital where Trump uploaded a video

message to Twitter, Facebook, and YouTube claiming the election had been stolen and referred to

the protestors at the capital as “good people.”

All three platforms removed the video for violating

their policies on civil integrity and election misinformation.

In the following days, those

platforms along with others put out statements and followed through with a permanent ban on

Donald Trump’s future use of their platforms.

Mark Zuckerberg, the CEO of Facebook, addressed

this decision: “the public has a right to the broadest possible access to political speech, even

controversial speech[,] [b]ut the current context is now fundamentally different involving the use

of our platform to incite violent insurrection against a democratically elected government.”

Following the events of January 2021, conservatives across the nation were outraged by

the actions of these big tech companies. Many argued that this was censoring political speech,

especially conservative voices.

While big tech companies have been under fire for their power

to control speech almost since their inception, this past year has pushed the argument to the

forefront of legal debate.

Social media has only been a part of American society for the past twenty years. Thus, it

has been an ongoing challenge to keep up with the ever-changing dynamic between these big tech

platforms and free speech. The iPhone, which you could likely find in everyone’s pocket today,

is not even fifteen years old.

Technology has been growing at a rapid rate and continues to play

CNN, Trump Tells Rioters to ‘Go Home’ while Repeating Election Lies, YOUTUBE (Jan. 6, 2021),

https://www.youtube.com/watch?v=3_JxN9CwIMU; see also, Donald Trump (@realDonaldTrump), TWITTER,

https://mobile.twitter.com/realDonaldTrump.

Kate Conger & Mike Isaac, Inside Twitter’s Decision to Cut Off Trump, N.Y. TIMES (Jan. 16, 2021).

https://www.nytimes.com/2021/01/16/technology/twitter-donald-trump-jack-dorsey.html?searchResultPosition=2.

Id.

Social Media Fact Sheet, PEW RSCH. CTR. (Apr. 7, 2021), https://www.pewresearch.org/internet/fact-sheet/social-

media.

a bigger and bigger role in the lives of Americans.

Today, about one in seven Americans are

social media users, and most are checking social media daily.

Despite the pervasive use of social

media, there is minimal legislation regulating these big tech platforms.

Social media platforms

have started to self-regulate information on their sites. In 2020, Facebook and Twitter began

labeling misinformation and using third-party fact-checking programs.

For example, Instagram

(which is owned by Meta

) has made content from accounts that have posted misinformation

multiple times harder for users to find by filtering content from these accounts out of the Explore

and hashtag pages.

There has been a shift over the past decade from the preference of traditional mass media

to digital sources, such as Twitter.

About one in five U.S. adults say they get their political news

primarily from social media.

The power these big tech companies have to influence U.S. citizens

is growing every day.

Going forward, we must address whether the legislature or the judiciary

has the power to regulate these platforms to ensure free speech is protected.

Id.

See e.g.,Adam Thierer, The Perils of Classifying Social Media Platforms as Public Utilities, 21 COMMLAW

CONSPECTUS 249, 254 (2013).

Preparing for Elections, META, https://about.facebook.com/actions/preparing-for-elections-on-

facebook/?utm_source=Search&utm_medium=google&utm_campaign=USPublicAffairs&utm_content=Search-

facebook%20fact%20checker-530675206482 (last visited Jan. 13, 2022); Yoel Roth & Nick Pickles, Updating our

Approach to Misleading Information, TWITTER, (May 11, 2020)

https://blog.twitter.com/en_us/topics/product/2020/updating-our-approach-to-misleading-information.

Facebook rebranded as Meta in October 2021. Introducing Meta: A Social Technology Company, META (OCT. 28,

2021) https://about.fb.com/news/2021/10/facebook-company-is-now-meta/.

Helping to Protect the 2020 US Elections, META, https://about.fb.com/news/2019/10/update-on-election-integrity-

efforts/ (last visited Feb. 17, 2022).

Social Media and Politics in the United States – Statistics & Facts, STATISTA RSCH. DEP’T. (Feb. 25, 2021),

https://www.statista.com/topics/3723/social-media-and-politics-in-the-united-states.

Amy Mitchell et. al., Americans Who Mainly Get Their News on Social Media Are Less Engaged , Less

Knowledgeable, PEW RSCH. CTR. (July 30, 2020) https://www.pewresearch.org/journalism/2020/07/30/americans-

who-mainly-get-their-news-on-social-media-are-less-engaged-less-knowledgeable/.

See generally Brooke Auxier & Monica Anderson, Social Media Use in 2021, PEW RSCH. CTR. (Apr. 7, 2021),

https://www.pewresearch.org/internet/2021/04/07/social-media-use-in-2021/. Social Media Fact Sheet, PEW RSCH.

CTR., (Apr. 7, 2021), https://www.pewresearch.org/internet/fact-sheet/social-media.

The Communications Decency Act of 1996 was Congress’s first attempt to regulate

offensive material on the internet.

Section 230 of the Communications Decency Act addresses

providers of interactive computer services.

Specifically, Section 230 states that interactive

computer services (which Twitter and Facebook are) should be treated as a publisher or speaker

of information, effectively shielding these services from civil liability.

The Supreme Court of

the United States has never interpreted Section 230 since its enactment over twenty-five years

ago.

Reforming or repealing Section 230 has repeatedly been debated as social media giants like

Twitter and Facebook have taken on larger roles in society.

There have been many suggestions

on how the United States could regulate these big tech companies, many which support regulating

them within the current legislative framework. One theory of regulation that has been recently

picking up steam is regulating these big tech companies as common carriers.

Common carrier

status would require these companies to, among other things, serve all users equally and be

accountable to the First Amendment.

This Comment will address the shift of the free speech debate originally aimed at protecting

private citizens from government intrusion, to now protecting government officials from intrusion

of private citizens. Twitter and Facebook are owned by private citizens, who have the right to

delete any account that they deem has violated their guidelines, including accounts run by

government officials. Social media giants now have a unique unprecedented power, to control the

Sara Ziegler, Communications Decency Act of 1996, THE FIRST AMENDMENT ENCYCLOPEDIA (2009),

https://www.mtsu.edu/first-amendment/article/1070/communications-decency-act-of-1996.

47 U.S.C. § 230.

Force v. Facebook, Inc., 934 F.3d 53, 68 (2d Cir. 2019).

Sara Ziegler, Communications Decency Act of 1996, THE FIRST AMENDMENT ENCYCLOPEDIA (2009)

https://www.mtsu.edu/first-amendment/article/1070/communications-decency-act-of-1996.

Section 230 – Nurturing Innovation or Fostering Unaccountability? U.S. DEP’T OF JUST. (June 2020)

https://www.justice.gov/file/1286331/download.

See e.g., Matthew Feeney Are Social Media Companies Common Carriers? CATO INST. (May 24, 2021),

https://www.cato.org/blog/are-social-media-companies-common-carriers.

narrative on a variety of topics, but especially political speech. It will argue that big tech

companies should not be regulated as common carriers because Congress has to enact legislation

uniquely addressing this issue to remedy the problem. This Comment examines the past, present,

and future of big tech’s interaction with the freedom of speech, specifically addressing why these

tech companies should not be classified as common carriers.

Part II will provide a background of major legislation and case law surrounding the First

Amendment and technology. Part III will focus on the present issues surrounding this debate,

specifically the four major current events that have made this issue extremely relevant: the Trump

administration’s actions including executive orders, Justice Thomas’s concurrence in Biden v.

Knight First Amendment at Columbia University, Donald Trump’s ongoing lawsuit to regain

access to his social media accounts, and Elon Musk’s purchase of Twitter. Part IV will focus

specifically on common carrier classification and how it has been historically understood by the

judiciary, as well as critique Justice Thomas’s concurrence in Biden v. Knight First Amendment.

Part V will analyze the broad consequences of proposed solutions within the current legislative

framework including classification as public entities, the State Action Doctrine, common carriers,

Section 230, and other branches of government. Part VI will focus on the next steps Congress

should take including proposing new legislation specifically aimed at regulation of big tech, while

still ensuring private companies have control over their platforms.

II. PAST: HISTORY OF LEGISLATION AND CASE LAW

To properly analyze the current political speech environment, first we must address the

history of legislation and case law.

Although social media is relatively new, the First

There is a vast amount of legislation and case law that overlaps with this issue, but there is a more limited amount

that directly impacts it. For the purposes of this Comment the case law and legislation that directly impact this issue

will be addressed.

Amendment of the United States Constitution is still the foundation for the discussion surrounding

free speech on social media. It is also necessary to address Section 230 of the 1996

Communications Decency Act (“Section 230”).

Section 230, while controversial, is one of the

only pieces of legislation that addresses speech on internet platforms. Because the Supreme Court

has never interpreted Section 230, this Comment will address Congress’s intentions in passing

Section 230. The Supreme Court, however, has addressed political speech outside of social media,

which is helpful for purposes of analyzing the current gaps in case law.

The Communications Act of 1934, specifically Section 201, addresses communications

common carriers and lays out the obligations and requirements for radio and telecommunication

companies.

Radio and television companies are the traditional common carriers in

communications, so to understand why social media companies are not comparable, the nature of

these companies must be explained. More recently over the past ten years, there has been much

discussion and deliberation surrounding the FCC’s net neutrality orders. Net Neutrality is the idea

that internet providers should have to treat all internet traffic equally regardless of content.

When looking at history of judicial interpretation and legislation of free speech, political

speech, and the internet it is clear that the judiciary nor Congress intended for big tech companies

to be common carriers.

Congress must pass legislation specifically applicable to companies like

Twitter and Facebook that can amend free speech issue and antitrust issues while also ensuring

private companies have control over their platforms.

A. Communications Act of 1934

47 U.S.C. § 230.

47 U.S.C. § 201.

See generally Verizon v. FCC, 740 F.3d 623, 628 (2014).

See generally Part VI.

In 1934, Congress combined federal regulation of the telephone, telegraph, and radio

communications in 47 U.S.C. § 151, which is more commonly known as the Communications Act

of 1934.

The Act additionally created the Federal Communications Commission (“FCC”) to

oversee and regulate the communications industries.

Since its enactment almost ninety years

ago, the Act has consistently been amended to keep up with new technology.

The most extensive

amendment was the Telecommunications Act of 1996, specifically Section 230, which is further

discussed in the next Section.

Telecommunications is defined in the statute as “transmission,

between or among points specified by the user, of information of the user’s choosing, without

change in the form or content of the information as sent and received.”

For the purposes of this

Comment it is not necessary to go into greater detail about the act specifically, as the most

important components are the FCC and Section 230 which will be addressed further below.

B. The First Amendment’s Freedom of Speech

In discussing the background of the freedom of speech it is essential to analyze the First

Amendment and the subsequent case law interpreting it. The First Amendment of the United

States Constitution lays out the five freedoms guaranteed to each citizen.

The five words which

create the freedom of speech have been considered a foundation of America’s democracy.

“Abridging the freedom of speech”

is a mere phrase, but has led to thousands of cases and various

interpretations. This freedom is not absolute; there have always been restrictions enacted by the

legislature and upheld by the judiciary.

This Section will (1) explain the difference between

47 U.S.C. § 151 et seq.

Id.

Id. See Part II. C.

Id. § 153(50).

U.S. CONST. AMEND. I.

Id.

E.g. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).

protected and unprotected speech; (2) how free speech has been interpreted on the internet; (3)

define public forums; and (4) explain the significance of political speech.

1. Protected versus Unprotected Speech

Generally, all speech is protected unless and until the judiciary deems it unprotected. If a

category of speech is deemed to be unprotected, then the government is able to make laws

prohibiting or punishing that type of speech. The Supreme Court has recognized eight categories

of speech that are not protected: “obscenity, defamation, fraud, incitement, fighting words, true

threats, speech integral to criminal conduct, child pornography.”

This categorical approach to

speech began in 1942 in the Supreme Court case Chaplinksky v. New Hampshire, where the Court

recognized fighting words as unprotected.

The Supreme Court has continued to recognize

additional unprotected categories since. For example, in Virginia v. Black the Supreme Court

recognized true threats as unprotected category of speech.

The Court reasoned that true threats

have little value to achieve truth, whatever value they have is outweighed by the harm to society,

and counterspeech cannot prevent the harm.

After the Court recognizes an unprotected category

it allows the government to create laws and punish speech that qualifies as the unprotected

category. As the Court in Virginia v. Black did, courts will often refer back to Justice Brandeis’s

theory of free speech in Whitney v. California to determine if a category of speech is protected.

Justice Brandeis’s free speech theory rests on truth-seeking, self-government, and autonomy.

These three purposes of free speech are instrumental to a Court’s analysis of a statute or type of

speech.

The First Amendment: Categories of Speech, CONGRESSIONAL RESEARCH SERVICES, (Jan. 16, 2019)

https://crsreports.congress.gov/product/pdf/IF/IF11072.

Chaplinsky, 315 U.S. at 574.

Virginia v. Black, 538 U.S. 343, 359 (2003).

Id.

Whitney v. California, 274 U.S. 357 (1927).

Id.

A common misconception about free speech is that lies and misinformation are not

protected, however this could not be further from the truth. The Supreme Court has continually

recognized that there is a value to false speech and lies. The solution to speech that is not true is

counterspeech, as stated in US v. Alarez, “the remedy for speech that is false is speech that is

true”

Beyond the actual words or symbols used, it depends on where the speech takes place,

which changes its constitutionality.

The government can regulate where speech takes place from

a ‘time, place, or manner regulation’, as long as it is narrowly tailored to a substantial government

interest.

For example, in Ward v. Rock Against Racism, New York City attempted to regulate

the volume of an amphitheater, which was located near a quiet area and apartments.

The

Supreme Court upheld the ordinance even though music is a protected form of speech because the

regulation was narrowly tailored to serve the government’s legitimate internet of protecting

citizens from unwelcome noise.

This is just one example of how the government can regulate

free speech by the location where speech takes place. This Comment will focus on whether the

internet is a free speech zone, and, more specifically, whether social media platforms are

traditionally recognized public forums, town squares, or something unclassified.

2. Free Speech on the Internet

There are multiple cases surrounding free speech on the internet, all of which have the

common theme of finding that some laws are too restrictive and some are too broad (that sacrifices

important communication on the internet).

In Reno v. ACLU, the Supreme Court addressed how

United States v. Alvarez, 567 U.S. 709, 727 (2012). See also Collin v. Smith, 578 F.2d 1197, 1203 (7th Cir. 1978)

(“Under the First Amendment there is no such thing as a false idea.”)

See Part II (B)(3).

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

Id. at 784.

Id. at 796.

See ACLU v. Reno , 929 F. Supp. 824 (E.D. Pa. 1996); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

the internet as a medium would be categorized for free speech purposes including whether a section

of the 1996 Communications Decency Act which, dealt with obscene or indecent communications

with children on the internet was overly vague.

The Court’s opinion established that the internet

could be a free speech zone.

The Court was confronted with two provisions of the Act that were

attempting to prohibit indecent speech on the internet. The Court held that the provisions were

vague and overbroad.

The majority reasoned that “governmental regulation of the content of

speech is more likely to interfere with the free exchange of ideas than to encourage it.” The Court

further found that freedom of expression and speech always outweighs any theoretical and

unproven benefit of censorship.

In Packingham v. North Carolina, the Supreme Court had to address whether a North

Carolina statute, which made it a felony for registered sex offenders to use commercial social

networking websites, was unconstitutional.

This was one of the first cases the Court took “to

address the relationship between the First Amendment and the modern Internet.”

The state

argued that their purpose in passing the statute was to keep sex offenders away from vulnerable

victims, including children.

The Court acknowledged that social media sites are “powerful

mechanisms available to a private citizen to make [their] voice heard.”

The Court stated the

importance of social media platforms including their role as the “principal sources for knowing

current events, checking ads for employment, speaking and listening in the modern public square,

Id.

Id. (“It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory

marketplace of mass speech that this country—and indeed the world—has yet seen. The plaintiffs in these actions

correctly describe the “democratizing” effects of Internet communication: individual citizens of limited means can

speak to a worldwide audience on issues of concern to them.”).

Id.

Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017).

Id.

and otherwise exploring the vast realms of human thought and knowledge.”

The Court held that

to close off complete access to social media altogether would be to prevent the user from “engaging

in the legitimate exercise of First Amendment rights,” and thus found the statute unconstitutional.

This opinion was instrumental in the internet free speech debate. Not only did the Court grant

certiorari for a social media case, but the Court recognized the social media as a “public square”

in the free speech context because of its current role in society.

Packingham was five years ago,

and since the Court has rarely granted certiorari for cases surrounding this issue.

Although the Supreme Court has rarely granted certiorari for social media/ internet speech

cases, some lower courts have addressed the issue. In 2018, a group of white supremists were

banned from Twitter after tweeting inviting their followers to donate to “taking out” a high profile

civil rights activist.

One user who was banned subsequently filed suit in California, but the court

ultimately granted Twitter’s motion to dismiss.

The Plaintiff argued that Twitter is the modern

version of the old public square and social media companies should not be able to monopolize the

speech on their platforms.

The Court, as expected, concluded that Twitter is a private sector

company, that has invited the public to use its platform with limits such as requiring abidance by

its User Rules.

Twitter, the court stated, has its own First Amendment right to exercise

independent editorial control over its platform.

Overall, the judiciary has consistently had to deal

Id. at 1737.

Packingham, 137 S. Ct. at 1737.

Id. First Amendment — Freedom of Speech — Public Forum Doctrine — Packingham v. North Carolina, 131 HARV.

L. REV. 233, 238 (2017).

Johnson v. Twitter, Inc., No. 18CECG0078, 2018 Cal. Super. LEXIS 8199, at *13 (Super. Ct. Cali. Fresno Cnty.

Ct. Juy. 3, 2018).

Id.

Id. at 10.

Id. at 11.

Id.

with free speech on new mediums including the internet, however have not and will not be able to

create a long term solution for big tech.

3. Public Forums

To analyze the “where” element of free speech, it is necessary to discuss public forums

because portions of Trump’s Twitter were ruled to be public forums in Trump v. Knight of First

Amendment.

The Supreme Court established three different types of public forums in Perry

Education Association v. Perry Local Educators’ Association: traditional, designated, and

nonpublic.

In Perry, the Court explained that public forums are places that the government “has

opened for by the public as a place for expressive activity” or “by long tradition . . . have been

devoted to assembly and debate.”

Traditional public forums are public spaces that have

traditionally been used for expressive purposes.

Traditional public forums are limited to

sidewalks, streets, and parks.

Designated public forums are public spaces the government has

opened for expressive activity.

Non-public forums are public property which is not by tradition

or designation a forum for public communication (i.e. jails).

When the government creates a

public forum for people to speak it cannot regard viewpoint. In Packingham v. North Carolina the

Supreme Court alluded to the fact that social media has new town square potential, which raises

the question if social media could one day become a designated public forum if it was regulated

as a state actor, common carrier or public utility.

4. Political Speech

Knight First Amendment, 928 F.3d at 237.

Id.

Id. at 45.

Noah R. Feldman & Kathleen M. Sullivan, Constitional Law 1211 (Saul Levmore et al. 20th ed. 2019)

Id.

Packingham, 137 S. Ct. at 1736.

Another area of free speech that surrounds this issue is political speech, because it is at the

core of First Amendment protection. What exactly is political speech, as the Ninth Circuit put it

in Pest Communications v. Miller, is not clear.

Although political speech can sometimes be

easily identified, for example, when a candidate is running for office, it goes beyond circumstances

that directly deal with a political position and extends to things like the circulation of a petition.

Identifying core political speech is important because courts ordinarily apply strict scrutiny to laws

that impose a burden on plaintiffs’ right to expression; they also must find that the law is narrowly

tailored to serve a compelling government interest.

Overall, this First Amendment analysis

supports the idea that Congress must pass unique legislation addressing big tech companies

intersection with free speech because there is limited applicable legislation and case law.

C. Section 230 of the 1996 Communications Decency Act

Turning to more recent legislation, twenty-five years ago Congress sought to pass law to

allow the internet to grow as a free market. As the Internet continued to expand, Congress had to

amend the Communications Act of 1934. There was now a new communications device on the

Internet—social media platforms—which were and currently are rapidly growing, which led to the

creation of Section 230.

Even in 1996, Congress saw the Internet’s potential.

Senator James

Exon of Nebraska, who introduced the bill, sought to protect vulnerable internet users from

inappropriate communications, with a main focus on pornography.

He wanted to “extend the

standards of decency which have protected telephone users to new telecommunications devices.”

PEST Comm. v. Miller, 626 F.3d 1097, 1105 (9

Cir. 2010).

Id.

See generally Brooke Auxier & Monica Anderson, Social Media Use in 2021, PEW RSCH. CTR., (Apr. 7, 2021)

https://www.pewresearch.org/internet/2021/04/07/social-media-use-in-2021/.

See e.g., Robert Cannon, The Legislative History of Senator Exon’s Communications Decency Act: Regulating

Barbarians on the Information Superhighway, 49 FED. COMM. L. J. 51, 70 (1996).

Id.

Id. at 53.

Since 1996, Section 230 has been nicknamed by some “the twenty-six words that created the

internet” because of the power that it gave to social media platforms.

Without it, as recognized

now, would have given social media platforms strong incentives to suppress any speech that could

create litigation. Today, many have acknowledged that the internet we know today would be

unrecognizable if Section 230 did not exist.

Section 230 explicitly states that it is the policy of the United States “to promote the

continued development of the Internet and other interactive computer services and other interactive

media [and] to preserve the vibrant and competitive free market that presently exists for the

Internet and other interactive computer services, unfettered by Federal or State regulation[.]”

Subsection c of the statute sets out what is known as the most controversial and impactful section

of Section 230 (aka the twenty-six words that created the internet). Section c describes the

protection ISPs receive as good Samaritans.

Section c states that “[n]o provider or user of an

interactive computer service shall be treated as the publisher or speaker of any information

provided by another information content provider.”

This sentence removes civil liability for

interactive computer services for content posted on their servers.

These provisions changed the

internet because they absolved social media platforms from liability. Because they are not treated

as publishers or speakers of information, Twitter and Facebook cannot be sued for what users post

on their platforms. If Section c did not exist and social media platforms could be liable for what

other users posted on their platforms then companies like Twitter and Facebook would be much

more strict on what and who could post on their platforms.

See e.g. Peter Coy, The Law That Shaped the Internet Presents a Question for Elon Musk, N.Y. TIMES (Apr. 15,

2022) https://www.nytimes.com/2022/04/15/opinion/musk-twitter-speech.html.

47 U.S.C. § 230.

Id.

The elements of Section 230 were a solution to events happening at the time of its

passage.

In the early 1990s, there was many cases where individuals were suing service

providers for user-generated content.

Two cases specifically lead to Congress’s promptness to

save Internet service providers from liability. In the first case, Cubby, Inc. v. CompuServe, Inc.,

Plaintiffs (an online newsletter) had brought an action for libel, business disparagement, and unfair

competition against a database carrier.

The Southern District of New York ultimately held that

the Defendant was a distributor, not a publisher, of the statements, thus they could not be held

liable for them because it did not know and had no reason to know of the statements.

In the

second case, Stratton Oakmont, Inc. v. Prodigy Services Co. the Plaintiff (a corporation) sued

regarding defamatory statements made by an anonymous user on the Defendant’s bulletin board.

The Nassau County Court found that because the Defendant had taken an editorial role in content

it was a publisher, thus legally responsible for libel committed by its users.

These two cases,

essentially had inconsistent holdings: they removed liability from online service provides if they

took an entirely hands-off approach, but held them liable if they took some steps to moderate

content.

Section 230 was Congress’s response to settle the disparity amoung these cases.

Still to this day, the Supreme Court has not interpreted Section 230, so for analysis we must

turn to lower court’s holdings. In 2014, Facebook CEO Mark Zuckerberg was sued surrounding

a delayed removal of a group on Facebook that was centered around the planning of an uprising

Jeff Kosseff, The Gradual Erosion of the Law that Shaped the Internet: Section 230’s Evolution Over Two Decades,

18 COLUM. SCI. & TECH. L. REV. 1, 4 (2016).

Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991); Stratton Oakmont v. Prodigy Servs. Co. ,

INDEX No. 31063/94, 1995 N.Y. Misc. LEXIS 229 (Sup. Ct. May 24, 1995).

Cubby, 776 F. Supp. at 140.

Id.

Stratton Oakmont, 1995 N.Y. Misc. LEXIS at *2.

Id.

Jeff Kosseff, The Gradual Erosion of the Law that Shaped the Internet: Section 230’s Evolution Over Two Decades,

18 COLUM. SCI. & TECH. L. REV. 1, 6 (2016).

against Jewish people and referenced killing Jews.

The group had more than 360,000 users.

In Klayman v. Zuckerberg, the Plaintiff argued that Facebook owed him a duty of care because he

was a subscriber to Facebook and they violated and breached the duty by “allowing and furthering

death threats.”

The D.C. Circuit found that Facebook was a provider or user of an interactive

computer service, the information Plaintiff sought to hold Facebook liable for was information

provided by another information content provider, and the complaint sought to hold Facebook

liable as the publisher or speaker of that application.

The court further explained what websites

would be protected under Section 230: “a website does not create or develop content when it

merely provides a neutral means by which third parties can post information of their own

independent choosing online.”

Section 230, while helped create the internet we know today, is

not enough to regulate these big tech companies, thus Congress must pass unique legislation

addressing them.

D. FCC’s Net Neutrality Order

Finally, it is necessary to address the role that the FCC has played in developing the

internet. The Federal Communications Commission (“FCC”) is an independent government

agency, which is overseen by Congress, it “regulates interstate and international communications

by radio, television, wire, satellite and cable.”

100

The FCC is an agency responsible for

implementing and enforcing communications law and regulations.

101

Net Neutrality is the FCC’s

effort to make “broadband providers to treat all [i]nternet traffic the same regardless of source.”

102

Klayman v. Zuckerberg , 753 F.3d 1354, 1356 (D.C. 2014).

Id.

Id. at 1358.

100

What We Do, FED. COMMS. COMM’N., https://www.fcc.gov/about-fcc/what-we-do (last visited Jan. 12, 2022).

101

About the FCC, FED. COMMS. COMM’N., https://www.fcc.gov/about/overview (last visited Jan. 12, 2022).

102

Verizon v. FCC, 740 F.3d 623, 628 (2014); see also Heather Morton, Net Neutrality 2021 Legislation, NAT’L CONF.

OF STATE LEGISLATURES, (Jan. 20, 2021), https://www.ncsl.org/research/telecommunications-and-information-

An Internet service provider (“ISP”) is “an entity that provides broadband service to

subscribers.”

103

Broadband “is all the services that supply high-speed Internet to subscribers.”

104

Some of the largest ISPs in America are AT&T, Comcast, and Verizon among others.

105

But, net

neutrality rules do not apply directly to Twitter and Facebook because they are not common

carriers like ISPs. Common carriers are companies that have a general requirement to serve

everyone equally.

106

In 2005, the FCC adopted a new principle to preserve and promote the open and

interconnected nature of public internet.

107

In February 2015, the FCC voted to regulate broadband

Internet service as a public utility.

108

Following this vote, known as the Open Internet Order, a

case came before the D.C. Circuit to decide whether the FCC had the authority to maintain net

neutrality.

109

In United States Telecom Association v. FCC, the D.C. Circuit upheld the order and

found that the FCC had authority to reclassify broadband as a telecommunications service.

110

Then

in 2018, the FCC’s Restoring Internet Freedom Order and transparency rule became effective.

111

The Restoring Internet Freedom order ended heavy-handed utility style regulation of the internet

technology/net-neutrality-2021-legislation.aspx. (“Net neutrality is the concept that all data traffic on a network should

be treated indiscriminately, and [ISPs] would be restricted from blocking, slowing down or speeding up the delivery

of online content at their discretion. The current debate surrounding net neutrality is principally about how ISPs should

be regulated and what role government should play in overseeing their network management practices.”).

103

Internet Service Provider (ISP), LEGAL INFO. INST.,

https://www.law.cornell.edu/wex/internet_service_provider_(isp) (last visited Jan. 12, 2022).

104

Id.

105

Id.

106

Biden, 141 S. Ct. at 1222.

107

Press Release, FCC, FCC Adopts Policy Statement (Aug. 5, 2005).

108

Rebecca R. Ruiz & Steve Lohr, F.C.C. Approves Net Neutrality Rules, Classifying Broadband Internet Service as

a Utility, N.Y. TIMES (Feb. 26, 2015), https://www.nytimes.com/2015/02/27/technology/net-neutrality-fcc-vote-

internet-utility.html?searchResultPosition=10.

109

United States Telecomms. Ass’n v. FCC, 825 F.3d 674, 689 (2016).

110

Id. at 743–44.

111

E.g., Andrea Page, Restoring Internet Freedom Begins Today with the End of Net Neutrality, HOMELAND SEC.

DIGIT. LIBR. (June 11, 2018).

and returned internet access to its classification as an information service.

112

An analysis of past

legislation shows that Congress must enact unique legislation to regulate big tech companies.

III. PRESENT: WHO IS REGULATING SOCIAL MEDIA?

Although free speech on social media has always been a highly debated area of law, events

over the past year has accelerated that debate like never before. This Part will explain four major

current events in this ongoing debate. First, President Trump’s administration’s actions

surrounding Section 230, specifically President Trump’s May 2020 Executive Order targeting

social media companies. Second, Justice Thomas’s concurrence in the Supreme Court case Biden

v. Knights of First Amendment, which was originally brought by Twitter users who had been

blocked by President Trump during his time in office. The case became moot because, by the time

it reached the Supreme Court, Trump had lost re-election. Justice Thomas’s concurrence is still

relevant since he argued that there is not enough regulation of social media platforms like Twitter.

Finally, this Part will examine President Trump’s current lawsuit which was filed in the United

States District Court of the Southern District of Florida in July 2021. President Trump is suing

Facebook, Twitter, Google, and their respective CEOs for censorship and the removal of his

accounts. Most recently, in May 2022, Elon Musk the CEO of Tesla and Space X purchased a

majority share of Twitter. These four events set up a present day analysis of the regulation of

social media and reveal the need for Congressional legislation to regulate big tech companies.

A. Trump’s Administration

Following Twitter’s first warnings on his tweets in May 2020, President Trump issued an

executive order to combat the actions of the social media company. He stated in his executive

order that these companies had “unchecked power to censor, restrict, edit, shape, hide, alter.”

113

112

Fact Sheet: Restoring Internet Freedom, FCC (Oct. 6, 2020) docs.fcc.gov.

113

Exec. Order No. 13925 85 Fed. Reg. 34079 (May 28, 2020).

Trump additionally mentioned that these platforms were engaging in selective censorship and that

placing the warning label on certain tweets reflects “political bias.”

114

This executive order

presents how relevant these issues were in the past presidency and the urgent need for

Congressional action. Executive orders are traditionally used in emergencies, and while the

argument can be made that this executive order was extreme and unnecessary it does point out a

gap in legislation. Because there has not been any congressional action, this is an example of

branch of government attempting to regulate. The gap of regulation of big tech companies should

not be reliant on executive orders, but should come from Congressional action. Executive orders

are unpredictable and ineffective for long-term solutions. Legislation from Congress specifically

targeting big tech companies would provide a long-term solution that could address free speech

and antitrust issues within one statute.

B. Justice Thomas’s Concurrence

While serving as President, Donald Trump’s Twitter account had blocked other Twitter

users. Blocking someone on Twitter prevents that user from seeing or interacting with their Twitter

account or tweets. In July 2017, a group of Twitter users blocked by @realDonaldTrump sued,

arguing that the blocking violated the First Amendment.

115

The Second Circuit in July 2019

affirmed the United States District Court for the Southern District of New York’s ruling that this

blocking by the President was unconstitutional.

116

The Second Circuit held that by preventing the

plaintiffs from “viewing, retweeting, replying to, and liking his tweets, the President excluded the

Individual Plaintiffs from a public forum, something the First Amendment prohibits.”

117

The

114

Id.

115

Charlie Savage, Twitter Users Blocked by Trump File Lawsuit, N.Y. TIMES (July 11, 2017),

https://www.nytimes.com/2017/07/11/us/politics/trump-twitter-users-lawsuit.html?searchResultPosition=3.

116

Knight First Amendment, 928 F.3d at 240.

117

Id. at 238.

Court recognized that, as the Supreme Court has previously stated, citizens have “no constitutional

right to force the government to listen to their views.”

118

The Court found this unconstitutional

because by blocking these users on Twitter, Trump prevented Plaintiffs’ ability to converse with

other Twitter users who could be speaking about the President.

119

The Court’s explanation came

down to the interactive features that users would be missing.

120

President Trump appealed to the Supreme Court, which granted certiorari; however, by the

time the Court was presented with the case in 2021, Trump had lost the election and was no longer

president.

121

Thus, the Court did not issue a formal opinion, vacating and remanding the case to

the Second Circuit to dismiss the case as moot.

122

Although the case was dismissed as moot, Justice Thomas wrote a lengthy concurrence

that was published in April 2021, addressing the issues surrounding stifled free speech on social

media platforms in light of Twitter’s suspension of Trump’s account.

123

Throughout his

concurrence, Justice Thomas expressed his concern of the power to control free speech that these

private actors hold.

124

Justice Thomas recommended that to limit the rights of a private company

to exclude there are two historical solutions.

125

First, he suggests that digital platforms should be

regulated as common carriers.

126

Second, he addresses that even if these platforms could not be

common carriers the legislature may be able to treat them as places of public accommodation.

127

118

Id. (quoting Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271 (1984)).

119

Id.

120

Id.

121

Biden v. Knight First Amendment Inst. at Columbia Univ., 141 U.S. 1220 (2021).

122

Id.

123

Id.

124

Id.

125

Id.

126

Id.

127

Biden, 141 S. Ct. at 1224 (Thomas. J., concurring).

Justice Thomas noted that “our legal doctrines apply to highly concentrated, privately

owned information infrastructure” such as Twitter and other digital platforms.

128

acknowledged that this situation is “historically unprecedented . . . concentrated control of so much

speech in the hands of a few private parties.”

129

This acknowledgement is apt because no one

could have predicted the degree of involvement they currently hold in society; thus lies the

difficulty in regulating them.

1. Digital Platforms as Common Carriers

Justice Thomas analogized previously recognized common carriers, such as telephone

companies, to digital platforms.

130

He compared the nature of “carrying information” from one

user to another of both digital platforms and telephone companies.

131

Telephone companies “lay[]

physical wire to create a network of connecting people;” likewise, digital platforms “lay

information infrastructure that can be controlled in the same way.”

132

Digital platforms, that have

dominant market share, are more similar to common carriers, such as communication utilities.

133

Justice Thomas recognized that the concentration of the small group of people who control these

media giants give them enormous control over speech.

134

The fact that these platforms are not the

sole means for distributing the speech or information is irrelevant because, like other common

carriers (for example, trains or bridge tolls), they can always technically be avoided, even if it is a

challenge.

135

Justice Thomas states that the test of whether a company has substantial market

power is “whether the alternatives are comparable,” and today he states nothing is.

136

128

Id.

129

Id.

130

Id.

131

Id.

132

Id.

133

Biden, 141 S. Ct. at 1224 (Thomas. J., concurring).

134

Id.

135

Id. at 1225.

136

Id.

concluded that common carrier regulation may be the answer for users who were blocked on these

digital platforms because it would create a restriction on the platform’s right to exclude.

137

2. Digital Platforms as Places of Public Accommodation

Justice Thomas explained that a place is of public accommodation ordinarily when “it

provides lodging, food, entertainment, or other services to the public in general”

138

He continues

on that digital platforms resemble Black’s Law definition of public accommodation but the courts

are split about whether “federal accommodation laws apply to anything other than physical

locations.”

139

Justice Thomas did not draw similar comparisons as he did for common carriers.

Justice Thomas’s concurrence, while helpful in bringing this issue to the forefront of the legal

world, incorrectly suggests that these digital platforms should be regulated under current

legislation. He correctly noted that this situation is unprecedented, however, he should have taken

the additional step to conclude that because of its uniqueness in nature, it requires a unique

solution.

C. Trump’s Lawsuit

In July 2021, Donald Trump filed lawsuits against Facebook, Twitter, and YouTube

seeking to restore Trump’s accounts, declare Section 230 unconstitutional, and that these platforms

are restraining his First Amendment freedom of speech.

140

Donald Trump’s complaint includes

multiple attacks on the power social media companies hold in creating the news narrative.

141

argued that

Twitter has increasingly engaged in impermissible censorship resulting from

threatened legislative action, a misguided reliance upon [Section 230], and willful

participation in joint activity with federal actors. Defendant Twitter’s status thus

137

Id.

138

Id. (quoting BLACK’S LAW DICTIONARY (11

ed. 2019)).

139

Biden, 141 S. Ct. at 1224 (Thomas. J., concurring).

140

Complaint, Trump v. Twitter. Inc., No. 1:21-cv-222441 (U.S.D.C. S.D. Fla. Mia. Div. July 7, 2021).

141

Id.

rises beyond that of a private company to that of a state actor, and as such,

Defendant is constrained by the First Amendment right to free speech in the

censorship decisions it makes.

142

While Trump’s lawsuit has been very publicized for other reasons, it supports the idea that

because of the lack of legislation, injured parties have to seek relief by filing lawsuits. Congress

must pass unique legislation to address this problem to avoid filling up the legal system with

frivolous lawsuits.

On May 6, 2022 a United States District Judge dismissed Trump’s complaint for failure to

state a claim on which relief could be granted under Federal Rules of Procedure 12(b)(6).

143

In his

opinion, Justice Donato emphasized that the First Amendment only applies to governmental

abridgements of speech, not to private abridgement of speech.

144

Specifically addressing the state

actor theory, the Court’s opinion recognizes that Trump and other Plaintiffs’ Twitter accounts were

deleted for specific reasons and specific instances of misconduct.

145

Twitter was not acting

pursuant to a government policy when it closed their accounts, it responded to factors specific in

each account and not pursuant to a government’s decision.

146

The Court went on to conclude that

complaint does not plausibly allege that Twitter acted as a government entity when it closed

plaintiffs’ accounts.

147

Plaintiffs’ theory of the case rested on the idea that the government

comopelled Twitter’s actions through Section 230, which has not imposed affirmative obligations

on Twtitter to act in a particular way.

148

Trump can amend his complaint, but he likely will not

get the relief he seeks under the current legislative framework.

D. Elon Musk Buys Twitter

142

Id.

143

Trump v. Twitter, Inc., 21-cv-08378-JD (N.D. Cal. May. 6, 2022).

144

Id.

145

Id.

146

Id.

147

Id.

148

Id.

In April 2022, Elon Musk, most famously known as the CEO of Tesla, pursued becoming

a majority share-owner in Twitter.

149

On April 25, 2022, Musk secured Twitter for forty-four

billion dollars.

150

Musk has been very vocal about his desired changes for the app. He tweeted on

May 3, 2022 that Twitter would always be free for “casual users”, but may have a slight cost for

commercial or government users.

151

The most significant change Musk is planning to implement

is reinstating Trump’s Twitter account and removing the permanent ban.

152

He has referred to

Twitter as the “digital town square” and has stated his reason for buying it was because “[f]ree

speech is the bedrock of afunctioning democracy.”

153

Musk tweeted that the only reason Truth

Social (Trump’s social media platform he created after he was permently suspended from Twitter)

exists is because “Twitter censored free speech.”

154

Although the deal has not officially closed

yet, many have criticized Musk and his ability to purchase a social media site as a billionare and

change the nature of the platform however he sees fit. It has also opened up a larger debate into

the costs of free speech and who’s hands it belongs in. This deal supports the idea that Congress

should step in and create legislation directed at social media platforms, so that the average citizen’s

ability of expression is not lost because they could not afford to buy a majority share in their social

app of choice.

IV. COMMON CARRIERS AND CRITIQUE OF JUSTICE THOMAS’S CONCURRENCE

149

Bobby Allyn Elon Musk Bought Twitter. Here’s What He Says He’ll Do Next, (Apr. 25, 2022)

https://www.npr.org/2022/04/25/1094671225/elon-musk-bought-twitter-plans.

150

Id.

151

@elonmusk, TWITTER (May 3, 2022, 7:19 PM),

https://twitter.com/elonmusk/status/1521630589710872576?cxt=HHwWgMCtsbO99Z0qAAAA

152

153

@elonmusk, TWITTER (Apr. 25, 2022 3:43 PM)

https://twitter.com/elonmusk/status/1518677066325053441?cxt=HHwWgsCyrduvtpMqAAAA

154

@elonmusk, TWITTER (Apr. 27, 2022, 1:11 PM),

https://twitter.com/elonmusk/status/1519363666377908225?cxt=HHwWgoC5sYzN7pUqAAAA

This Part will address how historical common carriers have been interpreted by the court

as related to telecommunications. It is necessary to analyze how the judiciary has categorized

common carriers in the past to determine whether social media platforms have similar qualities.

Common carriers have played a large role in the development of American society. The purpose

of them was “to guarantee that no customer seeking service upon reasonable demand, willing and

able to pay the established price, however set, would be denied lawful use of the service or would

otherwise be discriminated against.”

155

Public transportation companies, phone companies, cable

companies, and internet companies are the most well-known common carriers. As previously

discussed under the Communications Act of 1934,

156

the FCC was given the ability to classify a

communication organization as a common carrier.

157

Congress has never defined common carrier

nor provided clarity beyond the definition in the Communications Act, which defines common

carrier as “any person engaged as a common carrier for hire, in interstate or foreign communication

by wire or radio or interstate or foreign radio transmission of energy. . . ”

158

This Part will focus

on phone, cable, and internet companies and how they have been regulated as common carriers

and the judiciary’s interpretation of them. In doing so, it will illustrate why social media platforms

should not be regulated as common carrriers.

A. Common Carriers: Telephone Companies and Internet Services

155

See also Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 TELECOMM.

POL’Y 435, 437 (1994) (“[f]or centuries, common carriage principles have played an important role in the

infrastructure services of transportation and communications.”).

156

See Part II Section C.

157

Tyler Elliot Bettilyon, Network Neutrality: A History of Common Carrier Laws 1884-2018, MEDIUM (Dec. 12,

2017), https://medium.com/@TebbaVonMathenstien/network-neutrality-a-history-of-common-carrier-laws-1884-

2018-

2b592f22ed2e#:~:text=The%201934%20communications%20act%20established,Title%20II%20of%20the%20act.

158

FTC v. AT&T Mobility Ltd. Liab. Co., 883 F.3d 848, 855 (9th Cir. 2018).

Telephone companies were established as common carriers in the Mann-Elkins Act of

1910.

159

This was the first time in history that communications were under the jurisdiction of a

federal agency.

160

As common carriers, telephone companies had to offer their services without

discrimination and charge reasonable rates.

161

But because of this classification telephone

companies also received benefits, included limited liability.

162

In the early Twentieth Century,

AT&T had a “natural monopoly” over telephone services.

163

In 1934, a Congressional

Investigative Committed reported that there was “little, if any Federal regulation of the rates,

practices, and charges of the several branches of the communications industry.”

164

These findings,

as well as AT&T’s monopoly lead to the passage of the Communications Act of 1934, which

created the FCC.

165

The FCC was authorized to impose telecom service requirements at regulated

rates, and government approval was required when there were deviations in product or service.

166

AT&T’s monopoly continued to grow, and eventually they held 80% of all telephone lines.

167

In 1974, The U.S. Department of Justice filed a civil antitrust suit against AT&T for

monopolizing telecommunications service in the United States.

168

At this time, AT&T was the

largest corporation in the world.

169

AT&T was still a regulated monopoly until 1984, when the

159

Tim Wu, A Brief History of American Telecommunications Regulation, 5 OXFORD INTERNATIONAL ENCYCLOPEDIA

OF LEGAL HISTORY, 95, 96 (2007).

160

Id.

161

Id.

162

Rendi L. Mann-Stadt, Limitation of Liability for Interruption of Service for Regulated Telephone Companies: An

Outmoded Protection?, 1993 U. ILL. L. REV. 629, 641 (1993).

163

Diane Katz & Theodore Bolema, Crossed Lines: Regulatory Missteps in Telecom Policy, MACKINAC CTR. FOR

PUBLIC POLICY 1, 7 (2003).

164

James L. Peleky The History of Comut. Comm’n, THE HISTORY OF COMPUT. COMM’N. (2021)

https://historyofcomputercommunications.info/section/2.9/the-fcc-and-at&t-regulation-1934-1946/.

165

Id.

166

Diane Katz & Theodore Bolema, Crossed Lines: Regulatory Missteps in Telecom Policy, MACKINAC CTR. FOR

PUBLIC POL’Y 1, 7 (2003).

167

Id.

168

Press Release, Dept. of Justice (Nov. 20, 1974) (on file with author).

169

Id.

government forced the company to breakup as a result of the 1974 lawsuit.

170

More recently

AT&T argued after being sued by the Federal Trade Commission (“FTC”) that they were exempt

from FTC regulation because they were a common carrier.

171

In FTC v. AT&T, the Ninth Circuit

found that a telecommunication carrier would be regulated as a common carrier only to the extent

that it engages in providing telecommunications services.

172

Therefore, AT&T could only use

common carrier protection for the services it was offering that were common carrier based. To

summarize, companies do not receive statuses as common carriers, one company can receive

common carrier protection for common carrier pursuits but lose that protection for non-common

carrier pursuits.

173

The Court held that AT&T did have common carrier protection for some

services but not the data-throttling services the FTC was coming after them for.

Originally internet services were not regulated as common carriers.

174

The

Telecommunications Act of 1996 did not classify cable broadband internet service providers as

common carriers.

175

The FCC classified cable broadband as an information service, not a

telecommunication service, thus they were not common carriers. The FCC based this classification

170

Tyler E. Bettilyon, Network Neutrality: A History of Common Carrier Laws 1884-2018, MEDIUM.COM (Dec. 12,

2017), https://medium.com/@TebbaVonMathenstien/network-neutrality-a-history-of-common-carrier-laws-1884-

2018-2b592f22ed2e.

171

FTC v. AT&T Mobility Ltd. Liab. Co., 883 F.3d 848, 851 (9th Cir. 2018).

172

Id.; see also Nat’l Asso. of Regulatory Util. comm’rs v. Fed. Commc’ns Com., 533 F.2d 601, 608 (1976) (“An

examination of the common law reveals that the primary sine qua non of common carrier status is a quasi-public

character, which arises out of the undertaking ‘to carry for all people indifferently. . . .’ This does not mean that the

particular services offered must practically be available to the entire public; a specialized carrier whose service is of

possible use to only a fraction of the population may nonetheless be a common carrier if he holds himself out to serve

indifferently all potential users. Nor is it essential that there be a statutory or other legal commandment to serve

indiscriminately; it is the practice of such indifferent service that confers common carrier status. That is to say, a

carrier will not be a common carrier where its practice is to make individualized decisions in particular cases whether

and on what terms to serve.”).

173

FTC v. AT&T Mobility Ltd. Liab. Co., 883 F.3d at 860.

174

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 992 (2005).

175

Id.

on the idea that an internet access providers were not offering telecommunication services directly

to the public.

176

In 2005, during the National Cable & Telecommunications Association v. Brand X Internet

Services (“Brand X”) case, there were two main kinds of broadband internet services: cable modem

service and digital subscriber line service.

177

Brand X was a small internet service provider that

wanted to use cable operators’ networks.

178

But, because cable services were not regulated as

common carriers, cable operators did not have to comply with Brand X’s request.

179

Brand X

argued that cable companies not being required to share their networks would make consumers

pay higher prices and have less choices.

180

The FCC argued that regulation that applied to

telephone services have increased prices and slowed broadband growth.

181

The Court held that

cable-modem service constituted a telecommunications service.

182

In 2005, the Supreme Court

overturned a decision that would force cable companies to share their infrastructure with internet

services providers.

183

Brand X still appears to not have achieved the desired results. In 2017, an FCC report

revealed that most citizens have limited choices when it comes to internet services.

184

For an

internet speed of twenty-five mbps, the report revealed that 58% of citizens have access to zero or

one providers, and for 100 mbps 88% have access to zero or one.

185

176

Id. at 978. (“their cable modems not to transmit information “transparently,” such as by using a telephone, but

instead to obtain Internet access”).

177

Id. at 975.

178

Id.

179

Id.

180

Nat’l Cable., 545 U.S. at 976.

181

Id.

182

Id. at 1002.

183

See also FCC v. Midwest Video Corp., 440 U.S. 689, 701 n.10 (1979) (“Due to the circularity of the definition,

resort must be had to court and agency pronouncements to ascertain the term's meaning.”).

184

Internet Access Services: Status as of June 30, 2016, FED. COMM’N COMM. (Apr. 2017)

https://www.fcc.gov/general/iatd-data-statistical-reports.

185

Id.

B. Critique of Thomas’s Concurrence

This Section will analyze and critique Justice Thomas’s concurrence in Biden v. Knights

of First Amendment, specifically his suggestion to regulate social media giants as common carriers.

This section will additionally compare and discuss the distinctions between historically recognized

common carriers and big tech companies. It is necessary to analyze Thomas’s concurrence

because it is possible that in the near future a case surrounding this issue will be brought in front

of the Supreme Court and Justice Thomas’s recommendation is flawed.

Justice Thomas correctly acknowledged that there is “principal legal difficulty that

surrounds digital platforms—namely, that applying old doctrines to new digital platforms is rarely

straightforward.”

186

Thus, it is confusing to understand why he is then suggesting that digital

platforms be regulated with old doctrines (common carriers or public accommodations).

187

There

are fundamental differences between big tech companies and cable and phone providers.

Phone and cable providers offer essential services to citizens with little to no competition.

Although the argument could be made that big tech platforms have little to no serious competition,

the services that Twitter and Facebook offer to citizens are not as essential as phone and cable.

Twitter and Facebook are free platforms, where anyone over a certain age can make an account,

or even multiple accounts. A prominent reason in regulating phone and cable companies as

common carriers is to regulate costs to consumers because of the limited market players. This

problem does not exist in the social media market. Because Twitter and Facebook are free

platforms, anyone who follows their rules can exist on and use the sites. There are no costs that

could be regulated by a common carrier regulation for these big tech platforms.

186

Biden, 141 S. Ct. at 1224 (Thomas, J., concurring).

187

See Part II Section C.

Another difference between traditional common carriers and big tech platforms is the

difference in necessity. Phone and cable companies while could be argued are not necessities, play

essential roles in the lives of Americans, especially in the Twentieth Century. Although social

media has become increasingly popular, it would be a stretch to describe them as essential.

Americans do not need social media to exist as a society. Regulating Twitter and Facebook as

common carriers would set a precedent of their inflated importance in society and open the door

for many other industries to become common carriers, to the point that common carrier regulation

would lose its unique necessary contribution in American legislation. Justice Thomas states that

it does not matter that these platforms are not the “sole means for distributing speech or

information.”

188

He goes on to say that there is nothing comparable to these large digital platforms.

In this sense he is correct, however, that does not mean that the only solution to solve this problem

is common carrier regulation. This logic is flawed because it gives the possibility for extension of

common carrier regulation to numerous other industries if there are no comparable companies. In

many industries in the United States there are few market actors, and some do not offer comparable

alternatives.

Justice Thomas draws a comparison between phone wires connecting people and digital

platforms connecting people. This is an attempt to show how traditional common carriers are like

digital platforms in the sense that they both carry information. This analogy fails to acknowledge

the many things in American society that carry information from one person to another, which

under this logic would have to be regulated as common carriers. It also shows that Justice Thomas

had no choice but to support his argument on a weak illustration comparison because actual legal

support for his conclusion does not exist.

188

Biden, 141 S. Ct. at 1225 (Thomas, J., concurring).

Justice Thomas fails to address the most important reason why his suggestion is flawed,

being that these platforms are private actors that play innately different roles than phone and cable

companies. These platforms deserve to have at least moderate control over the websites they have

created. AT&T in the Nineteenth Century played a different role in running their service than the

boards of Twitter and Facebook play in running their companies. Twitter and Facebook were

started by young entrepreneurs and created new concepts for platforms that ended up becoming

very popular not only in America, but around the globe. These platforms added new words to the

American vocabulary; words like “tweet” developed new meaning. Each platform presents unique

qualities that attract different users. Twitter, for example limits the post length of tweets to 140

characters. Facebook has developed groups which allow people with like interests to post in a

common page. Instagram, which is owned by Facebook, does not allow written posts at all, users

can only post photos or videos with captions. These platforms are not interchangeable, even with

each other. The leaders of these platforms have developed them with specific rules and guidelines

for users. If the government were to make these platforms common carriers, these private actors

would lose their regulatory control over the business they have created. Justice Thomas’s

argument loses merit, when it is realized that by regulating these platforms as common carriers

these private companies would have little to no control over the nature of their platforms. It seems

unnecessary to set a precedent that if certain companies create new spaces in new industries in

society that become very popular the answer is to regulate them as common carriers, essentially

taking away a private actor’s control over their own company.

V. FUTURE: CONSEQUENCES OF PROPOSED SOLUTIONS WITHIN THE CURRENT

LEGISLATIVE FRAMEWORK

As previously discussed,

189

it is apparent that the problem with social media regulation is

that there is not enough.

190

Both sides of the political spectrum agree, but for different reasons,

that something needs to be done to regulate big tech companies. This Part will first address why

other branches of government cannot properly remedy this problem. Then it will present a broad

overview of four prominent proposed solutions to increase accountability and control over big tech

companies. The first proposed solution is revoking or reforming Section 230. The second

proposed solution is making social media companies state actors within the State Actor Doctrine.

The third solution would be classifying big tech companies as common carriers and regulating

them as such. Finally, the fourth proposed solution is classifying social media companies as public

entities or utilities. It is important to address why prior recommendations have not succeeded and

what is necessary to reach the goal of proper regulation while also balancing free speech.

A. Regulation Relationship Between Congress, the States, and the Judiciary

It is important to look to the different branches and layers of the American government and

how each individually and jointly plays a role in regulating social media. This analysis is relevant

to determining why Congress would be most effective to regulate big tech companies. There is

overlap between the different branches when it comes to regulating technology in general

especially with social media companies like Twitter and Facebook.

1. The States

Because of the nature of the internet, individual states cannot enact legislation which makes

big tech platforms different than in other states. For example, if New Jersey enacted a statute

stating it would regulate social media platforms as common carriers, it would not work. The idea

of the internet is for it to be the same for everyone (also known as net neutrality). The regulation

189

See Part I.

190

Id.

would have to be nationwide for it to not only work, but also for it to be legal. States have already

attempted to create a patchwork of differing legislation for social media companies.

191

Platforms like Twitter and Facebook require federal legislation for regulation to be

successful because of its ability to cross state lines. The debate surrounding regulation of internet

companies brought these same issues to light.

192

The problems of state regulation of the internet

focus on a lack of uniformity; it would be impossible for companies and websites to comply with

different state laws.

193

Beyond the feasibility of state regulation, there are jurisdictional issues,

which limit states’ reach.

194

Because the internet does not exist in any singular state but transcends

states borders, any state court’s decision would affect other states’ internet use. Four factors have

prevented state action: the reach of state court’s jurisdiction, the dormant Commerce Clause,

federal preemption, and the First Amendment’s right to free speech.

195

2. The Judiciary

191

Florida and Texas passed statutes in 2021 to target companies like Twitter for restricting and removing content or

accounts for violating their rules. Florida Governor Ron DeSantis has proposed a law named Transparency in

Technology Act that would protect political candidates from being banned on social media. Megan Kashtan Tracking

Proposed Social Media Legislation in America, LEADERSHIP CONNECT (Apr. 29, 2021)

https://www.leadershipconnect.io/business/2021/04/29/tracking-proposed-social-media-legislation-in-america/.

(“The bill would allow users to sue social media companies. Companies could be fined for deplatforming a political

candidate. Users can opt out of post promotion and shadow banning and political candidates cannot be promoted or

shadow banned during an election.”) A judge blocked FL SB 7072 from becoming law. Jennifer Kay Florida’s New

Social Media Law Blocked with Court’s Injunction, BLOOMBERG LAW (June 30, 2021)

https://news.bloomberglaw.com/tech-and-telecom-law/floridas-new-social-media-law-blocked-with-court-s-

injunction. Texas Governor signed a similar law in September 2021. H.B. 20, 87(2) Leg., (Tx. 2021). See also Scott

Nover Texas’s New Social Media Law is a Clear Violation of the First Amendment, QUARTZ (Sept. 14, 2021)

https://qz.com/2058465/texass-new-social-media-law-is-a-clear-violation-of-the-first-amendment/. (the law “forbids

the largest social media companies from removing users or their posts based on their political viewpoints.” The bill

would also let Texans sue social media websites with more than 50 million users over violations. The law categorizes

social media platforms as public forums and common carriers.”) Oklahoma Senate has proposed bill along similar

lines. Under this bill, users can sue social media platforms if they censor political or religious speech. Press Release,

Okla. Senate, Bill authorizing social media users to sue for censorship of poltical/religious speech approved in

committee (Feb. 23, 2021) https://oksenate.gov/press-releases/bill-authorizing-social-media-users-sue-censorship-

politicalreligious-speech?back=/senator-press-releases/rob-standridge/2021-02.

192

Mary Mullen, The Internet and Public Policy: Challenges and Policy Considerations for State Regulation, RSCH.

DEP’T. MINN. H.R. (May 2018), 2 https://www.house.leg.state.mn.us/hrd/pubs/int_statereg.pdf.

193

Id. (“A lack of uniformity in a patchwork of state legislation would be confusing if not impossible for companies

and websites to comply with and may inhibit the growth and “borderlessness” of the Internet.”).

194

Id.

195

Id.

The courts cannot in one wide swoop find everything surrounding this issue

unconstitutional.

196

The Court can interpret, and has the power of judicial review, but it cannot

legislate. The judiciary, while temporarily is the only available remedy for dealing with social

media users who are upset or frustrated with the platforms, is not a long-term solution.

197

The

Court’s role in legislation has been to interpret the meaning of the statutes and words of Congress

and determine whether or not they are constitutional. Section 230 is constitutional, but it is not

the most effective way of regulating social media platforms as they exist in society today.

B. Section 230

Critics of Section 230 are quick to note its flaws and demand its revocation, however, these

critiques fail to recognize what the internet would be today without the act. Section 230 allowed

for the internet and more specifically social media to grow into its current role in society.

198

Social

media would never have had the opportunity to become what it is today if every time someone

posted something inappropriate or attacking someone else on Facebook, they could sue the

platform. Although Section 230 has successfully created a free and open internet to a point, today

its flaws are increasing. Twitter and Facebook have essentially developed monopolies on the

196

This idea is not new, Justice Ginsberg had a well-known opinion about the Supreme Court’s broad sweeping

decision in Roe v. Wade. Compare to Olivia B. Waxman, Ruth Bader Ginsburg Wishes This Case had Legalized

Abortion Instead of Roe v. Wade, TIME (Aug. 2, 2018), https://time.com/5354490/ruth-bader-ginsburg-roe-v-wade/

(“The seven to two judgment in Roe v. Wade declared “violative of the Due Process Clause of the Fourteenth

Amendment” a Texas criminal abortion statute that intolerably shackled a woman’s autonomy; the Texas law

“except[ed] from criminality only a life-saving procedure on behalf of the [pregnant woman].” Suppose the Court

had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone

on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state

law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in

the Supreme Court’s splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely

struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have

served to reduce rather than to fuel controversy.”).

197

See generally Part I.

198

Michael A. Cheah, Section 230 and the Twitter Presidency, 115 NW. U. L. REV. 192, 194 (2020).

social media market and because of Section 230 have free reign to run their platforms as they see

fit.

199

Reform of Section 230 could have the potential to contribute to a solution to this problem.

C. State Actors

Another proposed solution to address this problem is to regulate digital platforms as state

actors. The State Action Doctrine “refers to the requirement that in order for a plaintiff to have

standing to sue over a law being violated, the plaintiff must demonstrate that the government (local,

state, or federal), was responsible for the violation, rather than a private actor.”

200

In Manhattan

Community Access Corp. et al. v. Halleck et al., the Supreme Court addressed converting a private

entity to a state actor.

201

The Court held that “[t]he fact that the government licenses, contracts

with, or grants a monopoly to a private entity does not convert the private entity into a state actor,

unless the private entity is performing a traditional, exclusive public function.”

202

In Manhattan

Community, the Supreme Court set out a test with three actions that can be used to determine when

actions of a private corporation constitute state action.

203

First, when the private entity performs a

traditional, exclusive public function they constitute a state actor.

204

Second, when the government

199

See generally Eamonn Brosnan, Should the Social Media Tech Companies be Considered Monopolies?, FRONTIER

CTR. FOR PUB. POL’Y (Jan. 10, 2019), https://fcpp.org/2019/01/10/should-the-social-media-tech-companies-be-

considered-monopolies/.

200

State Action Requirement, LEGAL INFO. INST., https://www.law.cornell.edu/wex/state_action_requirement (last

visited Jan. 12, 2022).

201

See also State Action Doctrine, MAX PLANCK ENCYCLOPEDIA OF COMPARATIVE CONSTITUTIONAL LAW (Oct.

2017), https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e473 (“the state action doctrine of the

Supreme Court of the United States (‘Court’) formulates a seemingly simple principle: the US Constitution in general,

and its individual rights in particular, apply only to state action, not to private action. State action, as a matter of

principle, is all government action, i.e., action by the executive, legislature, and judiciary at the state and federal level;

private action is all non-government action. The principle’s practical result is that, regardless of how strongly an

activity protected as a recognized individual right . . . .”).

202

Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019).

203

Id.

204

Id.

compels the private entity to take a particular action they constitute a state actor.

205

Finally, when

the government acts jointly with the private entity, they constitute a state actor.

206

Currently, big tech companies are not subject to First Amendment constraints because they

are private actors, not state actors. In Cyber Promotions v. AOL, , the Third Circuit held that AOL

(which at the time operated dial up internet and email service) was not a state actor and did not

perform an exclusive public function because government did not regulate the “exchange of

information between people, institutions, corporations and governments around the world.”

207

The

government does not regulate the exchange of information, thus it would be improper for a court

to find that a big tech company was performing a public function. The government has not been

successful in regulating big tech companies. As discussed in other parts in this Comment

208

, state

governments have attempted to pass legislation that would compel social media platforms to do

certain things, as well as Trump’s executive order which attempted to compel these platforms.

Finally, the government is not acting jointly with these big tech companies. Although many

governments have accounts on these platforms, that alone is not enough to conclude that the

government and these platforms are acting jointly. The government does not regulate the

platforms, it only interacts with them as users.

D. Common Carriers

There is a dangerous precedent that could be set if the judiciary were to rule that digital

platforms like Facebook and Twitter were common carriers. Common carriers have a special place

in legal and legislative terms, as well in society. When private actors such as these social media

companies become common carriers there is questions that arise as to when would common

205

Id.

206

Id.

207

Cyber Promotions v. AOL, 948 F. Supp. 436, 441 (E.D. Pa. 1996).

208

See Part V Section A.

carriers end and private actors begin? Companies like Disney, Netflix, and other entertainment

companies are at risk for a future government regulation preventing them from running their own

app or platform.

Additionally, these platforms and their subsequent owners deserve to have at least mild

control over their platforms and the users on that platform. Digital platforms as private companies

should have a right to create guidelines for the use of their platforms. Because there is an

increasing number of citizens who get their news and information exclusively from social

media,

209

it would be worrisome if these platforms could not put warnings on untrue information.

Those who support open digital platforms reason that users could block or choose content they

want to and do not want to see.

210

Although, this reasoning is flawed.

211

One citizen cannot have

a free internet when the person next to him does not.

E. Public Utilities/Entities

While reclassification may be the answer to solve the problem or at least contribute to a

more regulated social media, public utility classification would not be as beneficial as people

believe. A public utility is “an entity that provides goods or services to the general public.”

212

Some have previously argued that “public utility regulation has traditionally been the

archenemy of innovation and competition.”

213

If social media companies were to be regulated as

public utilities, the government would essentially be endorsing them and the use of them for their

citizens. It has potential to increase their market share and their current monopolies, unless the

209

Amy Mitchell, et al., Americans Who Mainly Get Their News on Social Media Are Less Engaged, Less

Knowledgeable, PEW RSCH. CTR. (July 30, 2020), https://www.pewresearch.org/journalism/2020/07/30/americans-

who-mainly-get-their-news-on-social-media-are-less-engaged-less-knowledgeable/.

210

Adam Candeub, Bargaining For Free Speech: Common Carriage, Network Neutrality, And Section 230, 22 YALE

J. L. & TECH. 391, 431 (2020).

211

Id.

212

Public Utility, LEGAL. INFO. INST., https://www.law.cornell.edu/wex/public_utility (last visited Jan. 12, 2022).

213

Adam Thierer, The Perils of Classifying Social Media Platforms as Public Utilities, 21 COMM LAW CONSPECTUS

249, 250 (2013).

regulation was designed to break up these large entities. Especially for the largest companies,

Twitter and Facebook, any chance of a new or smaller platform breaking its way into the space

would be impossible because of the government’s prior endorsement of Twitter and Facebook as

public utilities. Classifying as a public utility sends a message to citizens that they need or should

have what the government is telling them to. It additionally gives off the impression that these

two companies specifically are the most desirable platforms. Congress could classify all digital

platforms as public utilities compared to just classifying the ones with the largest user base,

however, it would be hard to argue that the smaller platforms used by a small amount of citizens

(hundreds or thousands compared to hundreds of millions)

214

would not be considered to perform

a “traditional or elusive public function.”

215

But, as previously mentioned, people who are seeking relief are seeking it through the

judiciary,

216

and some in their complaints request these platforms become public utilities. In June

2021 Ohio’s Attorney General, Dave Yost, sued Google requested that Google be regulated as a

public utility, arguing

217

that Google’s uses it dominance of internet search to steer Ohio citizens

towards Google’s products.

218

This shows the need for Congress’s intervention into this issue, so

differing jurisdictions do not create a patchwork of differing regulations.

VI. NEXT STEPS: CONGRESS HAS A DUTY TO ENACT NEW LEGISLATION REGULATING

SOCIAL MEDIA

214

Brooke Auxier & Monica Anderson, Social Media Use in 2021, PEW RSCH. CTR. (Apr. 7, 2021),

https://www.pewresearch.org/internet/2021/04/07/social-media-use-in-2021/.

215

Manhattan, 139 S. Ct. at 1925.

216

See Part III.

217

David K. Li, Ohio Sues Google, Claims Tech Giant Should be Regulated as Public Utility, NBC NEWS, (June 8,

2021), https://www.nbcnews.com/news/us-news/ohio-sues-google-claims-tech-giant-should-be-regulated-public-

n1269986.

218

Id.

This Comment has discussed why, under the current legislative framework, big tech

companies are not common carriers,

219

however, we still must address whether Congress ought to

enact legislation clearly designating social media companies as common carriers.

If Donald Trump’s lawsuit is any indication of what is to come, Congress needs to act to

avoid excessive lawsuits and differing jurisdictions interpreting outdated legislative framework

surrounding cutting edge technology and pass a proactive solution. For example, there is currently

a case being pursued by a Michigan citizen who was blocked access to his town’s police

departments and mayor’s Facebook page.

220

Everyday social media continues to grow into a

bigger portion of the lives of Americans, and these are likely just the beginning of lawsuits such

as Trump’s and others who get blocked or block others.

In Justice O’Connor’s Dissent in Turner Broad System v. FCC in 1994, she acknowledged

that “the First Amendment as we understand it today rests on the premise that it is government

power, rather than private power, that is the main threat to free expression.”

221

Today, the

argument could, and should, be made that the government is not the main threat to free speech

anymore. When the United States Constitution was written, a “town square” was really a square

in the middle of a town where people would speak their ideas. Today, the “town square” is usually

on a blue app on a six-inch smart phone in someone’s pocket.

Congress should not repeal Section 230.

222

Congress should not categorize digital

platforms as common carriers and the FCC should not release an order classifying them as such.

Reclassification, while potentially beneficial, will likely have an opposing effect unless done

219

See Part VII and VI.

220

Curt Guyette, Protecting Free Speech in the Virtual Town Square, ACLU (July 18, 2021)

https://www.aclumich.org/en/news/protecting-free-speech-virtual-town-square.

221

Turner 512 U.S. at 685 (O’Connor, J., dissenting).

222

See Part IV Section A.

correctly. Congress should enact legislation directly addressing the problems from the power that

Twitter and Facebook hold as social media giants.

Section 230 should not be amended, we still must allow smaller social media companies to

grow and have the same safe harbor protections that lead to Twitter and Facebook’s massive

growth and success. Section 230, while controversial, still served a vital role in creating the

internet we know today. One of the major problems acknowledged by all is that there is nothing

comparable to Twitter and Facebook. Smaller social media brands have attempted to break into

the social media market, but have failed to compete on the level of Facebook and Twitter.

The unique congressional legislation should focus on antitrust issues and base legislation

on a threshold for only significant market actors. When digital platforms reach a certain number

of United States users, that would trigger a modified immunity and certain transactions would

trigger a detailed review. The emphasis is on size of the digital platforms because it is not

necessary to regulate a small social media site the exact same as a multi-million user site, like

Twitter. The size focus would help to address the antitrust problems, as there are no comparable

platforms to Twitter and Facebook. When a platform reaches the designated number of users, then

they would receive modified immunity. No longer would they receive the absolute safe harbor

from Section 230 after reaching the user threshold.

VII. CONCLUSION

Congress must enact legislation to regulate these tech giants. Currently, they are mostly

self-regulated, but this is not enough to protect the freedom of speech for the American people.

Big tech platforms such as Facebook and Twitter should not be regulated as common carriers. If

a court interpreted social media platforms to be common carriers it would be overstepping and

interpreting the words of Congress to mean something they did not intend. Similarly, they should

not be regulated as state actors or public utilities. None of the proposed solutions presented by

Justice Thomas and other critics are in line with precedent nor are they an effective long-term

solution to solve this problem.

Critics of current regulation have tried to compare digital platforms to different types of

previously established legislative categories.

223

Some argue they are public forums, some argue

they are state actors, others argue they are public utilities or common carriers.

224

The truth of the

matter is that platforms like Twitter and Facebook will never fit into any of these categories

because they are different than anything a previous Congress or court could have predicted.

225

They are unique platforms which have created unprecedented situations that must be dealt with

unique and thoughtful solutions.

While free speech is the cornerstone of American democracy, the separation of powers and

balance between the branches of government is also essential. The judiciary must wait for

Congress to enact, repeal, or redefine current legislation for them to act. Congress must take the

first step by enacting specific and unique legislation to apply to these big tech platforms. The

problem does not lie in the fact that the sitting President can be legally blocked on Twitter. The

problem lies in the fact that there is next to no regulation of big tech companies, even though they

have the unmeasurable power over the lives of Americans. Congress must craft unique legislation

to address the gaps in regulation of these social media giants.

223

Id.

224

Id.

225

See Part I and Part VI.