轉發：政府管控社交媒體？

本文轉自Brookings政策研究所發表的文章：Social media companies and common carrier status: a primer。

Perhaps the single most important question relating to the role of government with respect to social media is this: Can the largest social media companies be regulated as common carriers? This question is particularly timely given two recent federal appeals courts decisions. 最大的社交媒體可以當作公共運營商來監管嗎？聯邦政府與法庭意見有時相左。

If the answer is no, as the Eleventh Circuit concluded in a May ruling, then the largest social media companies are largely free to decide which content and users to allow and prohibit from their platforms. If the answer is yes, as the Fifth Circuit concluded in September, then the government at both the federal and state level has broad authority to compel the biggest social media companies to host content and users they would otherwise prefer to block. Put another way, if social media companies are regulated as common carriers, they will have much less flexibility and autonomy than they have exercised to date in performing content moderation. 如果社交媒體不是公共運營商，那他們基本上自由決定禁止和允許哪些言論。如果政府可以監管他們好像監管公共運營商，那麼聯邦和州政府有權強制媒體平台提供用戶所不喜歡的內容，他們監管平台內容的自主權就要減少。

In this post, I’ll try to very briefly lay out what I think are some of the strongest arguments on either side of this issue. Before doing so, I’ll state my view up front: I think that the First Amendment should prevent government attempts to regulate social media companies as common carriers. This is a view that plenty of people, including some federal appeals court judges, share. But there are also plenty of people—including some federal appeals court judges and at least one Supreme Court Justice—who do not hold that view, and their perspectives merit consideration as well. 本文作者John Villasenor是研究院技術創新中心的資深院士，要分享雙方的不同意見。

甚麼是公共運營商，甚麼不是呢？It’s helpful to start by listing some of the categories of corporate entities that everyone agrees are common carriers: the companies that operate railroads, ferries, and telephone (including cellular) systems. These companies hold themselves out to the general public as providers of transportation or communications services. Because they are common carriers, they must provide these services without discrimination against or in favor of particular persons, groups, or (in the case of communications services) content. 大家都同意，鐵路、輪渡、電話(包括移動)系統，是公共運營，他們不可因為人群的觀點或通訊內容拒絕提供服務。

For instance, a railroad company can’t refuse to sell a ticket to a prospective passenger because it disapproves of the passenger’s political views. A cellular telephone network service provider can’t decline to offer service to a prospective customer because it disapproves of the content of the phone conversations it expects the customer to conduct.

By contrast, there is also universal agreement that newspapers are not common carriers. Their editors are free to decide the topics and tone of articles, and are free to accept or decline article and op-ed proposals based on factors including the viewpoints expressed. In fact, it is the combination of these decisions that creates the identity of the newspaper. 相比之下，報紙不是公共運營，他們的編輯人員可以自由決定題材和文章品味，自由接受或拒絕發表某個觀點的內容。

Social media companies do multiple things, not all of which implicate debates about common carrier status. Few people would suggest that social media companies are common carriers with respect to providing recommendations. Rather, the common carrier question arises in relation to decisions to block people or content from social media sites. 沒有幾人提議把社交媒體平台當作公共運營公司，只在談論禁止某類人物言論時才想起是否公共運營的問題。

說社交媒體不應該當作公共運營公司的理由：Here are some arguments that people (including me) who believe that social media companies should not be considered common carriers can make: First, social media companies are private entities that have First Amendment rights to decide what content, and which users, to allow on their sites. A social media company is engaging in expressive conduct when it curates the content on its site through a combination of promoting, suppressing, filtering, or removing posts or users. 第一，社交媒體是私營公司，在內容決定、用戶選擇方面有表達的自由，受憲法第一修正案的保護。

Second, in enacting Section 230 in 1996, Congress understood that the online ecosystem would be more likely to thrive if the companies hosting user-posted content perform content moderation. To promote that activity, Congress provided in Section 230(c)(2)(A) that providers of “interactive computer services” (which today includes social media companies) are not liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 第二，230條款允許電腦互動服務的公司不必負責限制淫穢骯髒過分暴力等等不良內容。

With respect to the enumerated categories of content, U.S. law thus encourages social media companies to perform precisely the sort of content-based discrimination that is off-limits to common carriers. At the very least, this suggests that Congress did not consider “interactive computer services” to be common carriers. It could even be argued that Section 230 preempts state legislatures from regulating social media companies as common carriers. 美國法律倒是鼓勵社交媒體公司對上述不良內容實行審核，至少國會沒把提供電腦互動服務當作公共運營公司。你甚至可以說230條款先行排除了社交媒體為公共營運公司。

Third, if the largest social media companies are deemed common carriers and, as the Texas social media law addressed by the Fifth Circuit ruling would require, are (subject to certain exceptions) prevented from blocking content based on the “viewpoint” of the user, that opens the door to all sorts of enormously problematic policy consequences. Some users might argue that racist speech is merely expressing a “viewpoint,” and that as a common carrier subject (in Texas) to Texas law, the social media company therefore cannot remove it or take steps to impede its propagation. Analogous assertions might be made with respect to a long list of content that a social media company has a strong interest in blocking, including posts promoting false medical cures, Holocaust denial, and so on. 第三，假如最大的社交媒體公司被視為公共運營商，不准阻止任何「觀點」內容，就會出現各種嚴重問題，比如任憑假藥方或陰謀論傳播，直接損害到社交媒體自身的利益。

說社交媒體應該/可以當作公共運營公司的理由(Villasenor博士不同意)：Here are a few arguments in favor of the idea that social media companies can be regulated as common carriers (caveat: I’m presenting these arguments, not agreeing with them): First, they hold themselves out to the public to provide a service enabling people to communicate with one another. In that respect, they are just a more recent technological manifestation of communications technologies that previously included the telegraph, landline telephone systems, and cellular networks—all of which are regulated as common carriers. 首先，社交媒體只不過是繼先前的電報、座機電話、移動網絡等等公共營運技術之後最新的通訊技術展現。

Second, while social media companies have First Amendment rights with respect to their own speech, they do not have an unconstrained right to suppress the speech of others. In this respect, they are like a telephone company. A telephone company is free to express its own views on issues it deems important. For instance, it can take public stances on proposed legislation that would impact its business. It is not free, however, to prevent people from conversing over its networks to express views it disfavors. 其次，社交媒體公司雖然有自由做各種決定，他們壓制別人發言的自由不是無限的，乃要付代價。

Third, Section 230 supports, rather than undermines, a common carrier classification because it provides a liability shield through ensuring that the speech of a social media site’s users is not the speech of the company that runs the social media site. Therefore, if the government compels a social media site to host disfavored content, it is not compelling the company itself to speak, but is rather compelling the company to refrain from blocking a third party from using its infrastructure to speak. 第三，230條款保護媒體公司不因用戶言論受起訴，所以政府可以要求公司避免禁止他人發言。

A lengthier post on this issue would also discuss the Supreme Court decisions holding that private entities such as shopping centers (in Pruneyard Shopping Center v. Robins in 1980), private universities (Rumsfeld v. FAIR in 2006), and cable television companies (in Turner Broadcasting System v. FCC, in 1994 and 1997) can be required to host speakers whose messages they would not otherwise choose to convey. Proponents of regulating social media companies as common carriers argue that these rulings support their position. Opponents argue that they are distinguishable, as Pruneyard and Rumsfeld didn’t implicate the private entity’s own speech, and Turner involved broadcasting, a domain where First Amendment protections are lower. 關於私營實體，比如購物中心、私立大學、有線電視公司，是否可以被政府強制要求傳播他們不想傳播的信息，美國最高法院聽審和裁決了幾個案子，有人認為是支持了政府對社交媒體加以管控，反對的人認為情況不同。

It is also worth noting that shopping centers, private universities, and cable companies are not common carriers. That the government was nonetheless able to compel them to host speakers helps underscore that common carrier status, as important as it is to determine, isn’t the whole story. The First Amendment rights of non-common-carrier private entities can involve shades of gray. 那些私營實體不是公共運營公司，但政府能夠強制他們邀請不同觀點的講員，還有不少細節可討論。

In sum, there is much more to be said on this issue than can be captured in a post this short. A more extensive treatment of the justifications for and against viewing the largest social media companies as common carriers are provided, respectively, in the Fifth and Eleventh Circuit opinions mentioned above. In addition, my UCLA colleague Eugene Volokh has recently published a law review article on this topic that goes into far more detail. UCLA Eugene Volokh教授最近就此發表了一篇更詳細的法律評論。

I’ll close by repeating my view that regulating social media companies as common carriers would contravene the First Amendment. It would also create a cascade of problematic consequences, including making many online spaces even more toxic than they are today. But I also recognize that these companies and the services they offer don’t fit neatly into traditional categories that made it easy to distinguish who is (e.g., telephone companies) and is not (e.g., newspapers) a common carrier. 政府管控社交媒體公司會違反言論自由原則，也會產生許多有害後果。