Abstract

This paper analyzes the circuit split between the Fifth and Eleventh Circuits. The Fifth Circuit held that social media platforms can be regulated as common carriers—and are therefore limited in their ability to indiscriminately censure their users—while the Eleventh Circuit held just the opposite in that social media platforms enjoy inherent constitutional rights to editorial discretion in who they censure. However, both courts erroneously apply a misleading analysis, a false dichotomy; social media platforms are neither complete common carriers nor enjoy complete, inherently protected constitutional rights to editorial discretion. This paper articulates why and frames the issue in a way the Supreme Court would find receptive (using originalist arguments), analyzes the circuit split, and provides additional arguments for why the Court should uphold state attempts at regulating social media platforms.

How to Cite:

Robert Saavedra Teuton, Social Media or Social Utility Company? Dissecting the False Dichotomy between Common Carrier and Editorial Discretion Analyses in Social Media Regulation, 6 Ariz. L. J. Emerging Tech., no. 6, 2023, https://doi.org/10.2458/azlawjet.5767