Yale Law Journal
technology, deplatforming, social-media platforms
Communications Law | First Amendment | Law | Science and Technology Law
Deplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content.
But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common law and the major infrastructural and utility sectors-—transportation, communications, energy, and banking-—American law has long provided rules and procedures for when and how to deplatform.
This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. Historically, the American tradition has not been one of either an absolute duty to serve or an absolute right to exclude. Rather, it has been one of reasonable deplatforming—- of balancing the duties to serve and the need to, in limited and justifiable cases, exclude. Theoretically, deplatforming raises common questions across sectors: Who deplatforms? What is deplatformed? When does deplatforming occur? What are permissible reasons for deplatforming? How should deplatforming take place? The Article uses the history of deplatforming to identify these and other questions, and to show how American law has answered them.
The history and theory of deplatforming shows that the tension between service and exclusion is an endemic issue for common carriers, utilities, and other infrastructural services—-including contemporary technology platforms. This Article considers ways in which past deplatforming practices can inform current debates over the public and private governance of technology platforms.
Deplatforming, 133 Yale Law Journal. 419
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1375