Limiting the Right to Exclude: Common Carrier and Market Dominance

The recent concurrence by Justice Thomas in Biden v. Knight First Amendment Institute has raised new questions about how we might think about restrictions on speech and debate on social media. Where private, concentrated control over online content and platforms exists, can a solution be found in doctrines that limit the right of a private company to exclude? While there is historical precedent for regulating communications networks in a similar manner as traditional common carriers, are social media platforms best understood as communications networks that “carry” information from one user to another? Or have they created a business model built more on “curated” speech that to some degree reflects their own expressive interest in acceptable debate and discussion? And how should we think about possible state regulatory efforts to regulate private companies in this way? Featuring: Adam Candeub, Professor of Law, Michigan State University Geoffrey A. Manne, President and Founder, International Center for Law and Economics Olivier Sylvain, Professor of Law, Fordham University Charles M. Miller, Deputy Chief Counsel, Ohio Attorney General's Office Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit * * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.