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Uncommon Carriage

Reid, Blake Ellis, Uncommon Carriage (February 21, 2023). Stanford Law Review, Vol. 76, 2024 (forthcoming), U of Colorado Law Legal Studies Research Paper No. 22-20, Available at SSRN: or

“As states have started to regulate the carriage of speech by “Big Tech” Internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga. This Article challenges the coherence of “common carriage” as a field and its utility for assessing the constitutionality and policy wisdom of Internet regulation. Assessing the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that conceptions of common carriage and its treatment by the courts vary significantly and are highly contingent on specific historical and technological circumstances. The Article observes that common carriage is an attractive nuisance for policymakers and judges that distracts from difficult normative questions over the extent of permissible government interventions into speech and editorial discretion that lie at the heart of contemporary debates over Internet policy. The Article disentangles talismanic invocations of “common carriage” by isolating three distinct questions: (1) the classification of “common carriers,” (2) the imposition of “common carriage” rules on those carriers, and (3) the First Amendment problems that flow from the imposition. Applying this novel three-part framework, this Article argues for a context- sensitive approach to Internet regulations that evaluates the designation of carriers, the imposition of rules, and the role of the First Amendment on a granular basis that more seriously accounts for the complexity of contemporary Internet platforms.”

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