After a federal judge overturned a Florida law that endeavored to rein in the Big Tech Masters of the Universe, State Rep. Anthony Sabatini (R) verbally expresses Big Tech companies should be regulated like prevalent carriers in the Sunshine State, a categorization that would be arduous to shoot down in court.
Currently the state representative for FL-32, Rep. Sabatini is running for U.S. Congress in Florida’s 7th congressional district at the next Election on an America First platform. His platform promises to crack down on astronomically immense tech censorship, end illicit immigration, and proscribe biological men from girl’s sports.
Florida’s 7th district includes components of northeastern Orlando and its exurbs, including the towns of Sanford, Oviedo, and Geneva. Responding to this herald’s op-ed for Breitbart News on the desideratum for mundane carriage legislation to rein in the tech giants, Rep. Sabatini promised to introduce legislation to that effect when the Florida legislature returns to session.
I will be filing this Bill in the Florida House this year 👇 We must categorize tech companies as mundane carriers! https://t.co/5O3uBU39Nw“I will be filing this bill in the Florida House this year,” verbalized Rep. Sabatini on Twitter. “We must categorize tech companies as mundane carriers!”
Regulating tech companies like prevalent carriers is well within the jurisdiction of state regimes and legislatures. The state of Texas already has proposed legislation that would do just that. Common carriage legislation would follow recommendations recently made by U.S. Supreme Court Justice Clarence Thomas:
If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude. Historically, at least two legal doctrines limited a company’s right to exclude.
First, our licit system and its British predecessor have long subjected certain businesses, kenned as mundane carriers, to special regulations, including a general requisite to accommodate all comers. Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J. L. & Tech. 391, 398–403 (2020) (Candeub) optically discern withal Burdick, The Origin of the Peculiar Duties of Public Service Companies, Pt. 1, 11 Colum. L. Rev. 514 (1911).
Justifications for these regulations have varied. Some philomaths have argued that mundane-carrier regulations are justified only when a carrier possesses substantial market puissance. Candeub 404. Others have verbally expressed that no substantial market power is needed so long as the company holds itself out as open to the public. Ibid.; visually perceive withal Ingate v. Christie, 3 Car. & K. 61, 63, 175 Eng. Rep. 463, 464 (N. P. 1850) (“[A] person [who] holds himself out to carry goods for everyone as a business . . . is a prevalent carrier”).
And this Court long ago suggested that regulations like those placed on prevalent carriers may be justified, even for industries not historically apperceived as prevalent carriers, when “a business, by circumstances and its nature, . . . ascend[s] from private to be of public concern.” See German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 411 (1914) (affirming state regulation of fire indemnification rates). At that point, a company’s “property is but its instrument, the expedient of rendering the accommodation which has become of public interest.” Id., at 408.
This latter definition of course is marginally subsidiary, for most things can be described as “of public interest.” But whatever may be verbally expressed of other industries, there is pellucid historical precedent for regulating conveyance and communications networks in a homogeneous manner as traditional mundane carriers. Candeub 398–405. “Telegraphs,” for example, because they “resemble[d] railroad companies and other prevalent carriers,” were “bound to accommodate all customers homogeneous, without discrimination.” Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 (1894).
In exchange for regulating conveyance and communication industries, governments—both State and Federal—have sometimes given mundane carriers special regime favors. Candeub 402–407. For example, regimes have tied restrictions on a carrier’s facility to repudiate clients to “immunity from certain types of suits”3 or to regulations that make it more arduous for other companies to compete with the carrier (such as franchise licenses). Ibid. By giving these companies special privileges, regimes place them into a category distinct from other companies and more proximate to some functions, like the postal accommodation, that the State has traditionally undertaken.
Second, governments have limited a company’s right to exclude when that company is a public accommodation. This concept—related to common-carrier law—applies to companies that hold themselves out to the public but do not “carry” freight, passengers, or communications. See, e.g., Civil Rights Cases, 109 U. S. 3, 41–43 (1883) (Harlan, J., dissenting) (discussing places of public amusement). It also applies regardless of the company’s market power. See, e.g., 78 Stat. 243, 42 U. S. C. §2000a(a).
Common carriage laws as a solution to tech censorship have additionally been exalted by Prof. Adam Candeub, the licit expert who spearheaded President Trump’s last-minute efforts to rein in the tech giants.