FROM FLORIDA AND TEXAS TO KARLSRUHE: ONLINE PLATFORMS AS PUBLISHERS OF YORE OR AS (UN)COMMON CARRIERS?

Abstract

The question as to the most apt regulatory model to apply to the internet is one that occupies legislators, policymakers and courts around the world. This question was recently debated in two diametrically opposed judgments by the Court of Appeals for the Fifth and the Eleventh Circuit, triggered by challenges to the Texas and Florida ‘anti-online censorship’ laws. The Court of Appeals for the Fifth Circuit likened platforms to common carriers, disputed that their content curation amounts to First Amendment protected speech, and upheld the constitutionality of the Texas law. The Court of Appeals for the Eleventh Circuit rejected platforms’ characterisation as common carriers. It argued that their content moderation decisions are First Amendment protected editorial judgements and declared the Florida law unconstitutional. These judgments did not address the closely linked, and equally vexed question whether users should be able to assert their free speech rights against social media platforms. In Germany, this question has been fought in a multitude of court cases, and has divided courts and commentators alike. The pending Supreme Court judgment and a possible German Constitutional Court verdict on the power of platforms to moderate users’ speech are likely to decisively shape the future of the internet. This paper proposes to contribute to this debate by adopting a comparative constitutional methodology to test, first, the historical analogies between old and new media employed in the Florida and Texas cases, and secondly, the limits of regulating social media platforms by human rights.