Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230

Adam Candeub
Democracy and the global flow of ideas depend upon a free internet. Network neutrality advocates worry that dominant broadband services providers, such as Verizon or Comcast, will use their market power to block, degrade, or otherwise discriminate against content originating from unaffiliated or disfavored firms. Others fear platforms such as search engines and social media will control online behavior and censor speech. Advocates of both network neutrality and platform regulation postulate an internet firm—either broadband service provider or search/social media platform—with the market power to discriminate among businesses and users. Yet, despite these similarities, broadband service providers and dominant search engines/social platforms face different regulatory regimes: the Federal Communications Commission’s (FCC) network neutrality regulation as opposed to section 230 of the Communications Decency Act. These differing regulatory regimes create an indefensible double standard for online platforms, with broadband facing potential network neutrality regulation but search/social media enjoying section 230’s liability protections.
Both network neutrality and section 230 reflect a historically typical “regulatory bargain” first found in common carriage, the body of law that has regulated transportation and communications networks for centuries. Government offers carrots, such as liability relief, and imposes sticks, such as antidiscrimination duties. In return, a dominant network firm furnishes public goods that flow from a universal communications platform. Viewing regulation through this prism, this Article forwards a unified internet liability regime consistent with consumer protection and free speech.
Recommended citation: Adam Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J.L. & Tech. 391 (2020).