Amicus Brief - NetChoice v. Paxton & Moody v. NetChoice
Open Markets Files Amicus Brief Defending States’ Authority to Regulate Tech Platforms as Common Carriers
Social Media Platforms’ Content Curation Should Not Immunize Platforms from Common Carrier Obligations
WASHINGTON - The Open Markets Institute filed an amicus brief in two, combined cases currently before the Supreme Court concerning states’ ability to regulate certain companies in the public interest, or as “common carriers”: Moody v. NetChoice and NetChoice v Paxton.
Written by Open Markets policy counsel Tara Pincock, Open Markets legal director Sandeep Vaheesan, and Jay Himes, the counsel of record, the brief examines how internet platforms are dissimilar to newspaper editors and are more like shopping center owners:
“Platforms do not resemble newspaper editors making considered decisions based on human judgment—sometimes individual and sometimes collective—about what content to include or exclude in a publication. Instead, they are more like shopping center owners anxious to connect shoppers with retailers...Increased engagement leads to increased sales from center stores, which means, in turn, increased revenue for the stores—the analog to the social media platforms’ advertisers,” the authors write.
Because the court has ruled that states can impose common carrier-like rules on shopping centers – as well as on railroads and telecommunications companies that the public can also broadly access – states should also be able to apply common carrier-style rules to the internet platforms.
Open Markets’ support for Texas and Florida in this brief may come as a surprise. However, it is not the states' challenged laws we support, but rather, the longstanding authority of states and the federal government to designate certain businesses as common carriers and require these carriers to be generally open to all comers on a non-discriminatory basis.
For instance, if Ohio is successful in recognizing Google as a common carrier, the state would be able to require Google to refrain from discriminating in search results against competitors or in favor of its own websites -- at least in Ohio.
This is the kind of common carrier enforcement we want to see more of at the state and national levels. Such enforcement would help restore fair competition across internet platforms. But if the court sets an adverse precedent in Moody v NetChoice or NetChoice v Paxton, it would not only threaten our current common carrier laws but also future attempts to make Big Tech adhere to common carrier duties.
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Read full brief below or download here.
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The Open Markets Institute is a team of journalists, researchers, lawyers, economists, and advocates working together to expose and reverse the stranglehold that corporate monopolies have on our country. Learn more at www.openmarketsinstitute.org.