Document Type

Article

Publication Date

2021

Abstract

Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial discretion over whom to carry or host. This gives putative common carriers and public accommodations substantial control over their First Amendment status. The jurisprudence on privacy regulation, quasi-common carriers, non-common carriage services, and public accommodations confirms that the First Amendment protections they enjoy are substantial.

Keywords

Constitutional law, First Amendment protections, free speech, digital platforms, common carriage, monopoly power, communications, public accommodations, right to exclude, non-discriminatory access, privacy, quasi-common carriers, non-common-carriage services, specialized services with net neutrality

Publication Citation

1 J. Free Speech L. 463 (2021).

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