When the Soapbox Talks: Platforms as Public Utilities (draft)

Abstract

Soapboxes are frequently used to illustrate the utility of modern-day informational platforms. The Supreme Court in Reno v. ACLU described chat rooms as allowing “any person with a phone line [to] become a town crier with a voice that resonates farther than it could from any soapbox.” 521 U.S. 844, 870 (1997). However, the legal literature rarely goes further in the comparison than conjuring the idyllic scene of a soapbox orator in the classic town square. Instead, scholars more often focus on the shift from mass media to “many-media” and how to update laws to fit mass media’s regulatory environment to the present day, including First Amendment concerns and extending liability to platforms.

These comparisons miss half the story. Comparisons to mass media rightly capture the concentration of corporate power inherent to mass media and present in modern-day platforms. The comparisons miss the amplification, portability, and affordability for the speaker in both the soapbox and social media eras. Overlooking these eras’ shared democratization of speech, the current literature fails to acknowledge the public and democratic aspects of the control of speech in the soapbox era and thus fails to consider the need for the same type of control of informational platforms today.

The legal literature has engaged with the idea of platforms as public utilities, but without framing the current era as a combination of the soapbox era and the mass media era. This Article addresses this deficiency by making a robust comparison to the soapbox era and exploring the need for public, democratic control of speech on informational platforms.

This Article has two parts. Part I will first compare the soapbox platform and soapbox oratory to informational platforms. In doing so, Part I will define informational platforms, explain why this comparison is worthwhile, and detail the key similarities and differences between soapbox oratory and informational platforms. In discussing the key similarities and differences, Part I will describe and apply Lawrence Lessig’s modalities of regulation. Part II will argue that informational platforms should be regulated like public utilities. To that end, Part II explains K. Sabeel Rahman’s infrastructural regulation approach and applies the approach to informational platforms, determining that informational platforms do provide infrastructural resources. Part II also offers potential policy responses consistent with the public utility approach, including firewalls, public obligations, and public options.