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St. Mary's Law Journal

Abstract

In response to online platforms’ increasing ability to moderate content in what often seems to be an arbitrary way, Justice Clarence Thomas recently suggested that platforms should be regulated as public accommodations such that the government could prevent platforms from banning users or removing posts from their sites. Shortly thereafter, Florida passed the Transparency in Technology Act, which purported to regulate online platforms as public accommodations and restricted their ability to ban users, tailor content through algorithmic decision-making, and engage in their own speech. Texas followed suit by passing a similar law, and Arizona debated a bill purporting to regulate platforms as public accommodations.

Given the obvious First Amendment concerns with regulating an online platform’s ability to publish and control content on its own forum, courts and legislatures must ensure that such regulations comport with the original understanding of how public accommodations could be regulated at the time of the founding (public accommodations originalism for short). As this Article argues, businesses could be regulated as public accommodations at the founding because they either: (1) held themselves out to the public as willing to serve all comers (the holding out theory); or (2) were subject to franchise obligations through legislation often because they were natural monopolies (the franchise theory). Most online platforms exhibit the necessary characteristics of public accommodations under both the holding out theory and the franchise theory and can thus be regulated as public accommodations according to the term’s original meaning.

That said, public accommodations originalism is subject to significant limitations as applied to online platforms. Specifically, under the holding out theory, an online platform can evade public accommodations status merely by ceasing to hold itself out as willing to serve all comers. Under the franchise theory, platforms must be given an exclusive government benefit in exchange for the corresponding duty to host content. Even where such a benefit exists, the platform cannot be subject to an absolute duty to host. Furthermore, platforms would largely maintain control over their algorithmic decisions and could not be prevented from engaging in their own speech. Therefore, while public accommodations originalism will limit a platforms ability to moderate content, it will not entirely undermine the platform’s autonomy. Any law purporting to regulate platforms as public accommodations that does not respect these limitations is unconstitutional since it does not comply with the original public meaning of the First Amendment and the law of public accommodations.

Notwithstanding the limited ability of public accommodations originalism to remedy some of the abuses associated with content moderation, the normative implications of such regulation cannot be ignored. Public accommodations originalism will require online platforms and their users to tolerate immoral, lewd, and otherwise objectionable content. But it will also prevent platforms from removing content that serves an important public purpose. Balancing these interests are matters that legislatures must contend with when debating whether to impose public accommodations regulations onto online platforms, but the fact of the matter is that such regulations (when appropriately tailored) are constitutional and should be upheld by the courts.

First Page

741

Last Page

804

Date Created

6-6-2023

Publisher

St. Mary's University School of Law

Editor

Heather C. Montoya

Suppress Author Email on Cover Page

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