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In 1830, there only a few experimental railroads in this country. By 1870, the railroad had become the essential means of transportation. A community without railroad access would wither. One at the junction of two or more lines competing lines could get lower rates than a town dependent on a monopoly. A business that could negotiate favorable treatment from the railroads could crush its competitors, as Rockefeller’s Standard Oil did. The result was regulation, first at the state level, and then in the federal Interstate Commerce Act of 1887. The principles of regulation were to require the railroad to serve all comers, to cap rates at a reasonable return, to require that they be uniform per mile, and to require that they apply equally to all similarly situated shippers. The courts concluded that this government interference with the railroad owners’ power complied with substantive due process on the theory that rail transportation was essential and that railroads were therefore “common carriers” whose business was “affected with a public interest.” The same regulatory model was later applied to the telephone network. It is now being suggested for social media.

Back in the 20th Century, reporter A.J. Liebling pointed out that “freedom of the press is freedom for a man who owns a press.” The internet was supposed to have changed all that, allowing anyone to be his or her own publisher without an intermediary, and enabling both a hundred flowers and a thousand noxious weeds to bloom unchecked. We editorialized to that effect last year. It turns out that we were wrong.

As the aftermath of Jan. 6 demonstrates, Twitter, Google and Facebook are very much the owners of social media. Their business model has been to let pretty much anyone say pretty much anything in order to draw the largest possible audience, but that was a matter of what the owners saw to be their corporate self-interest. The now controversial Section 230 of the Communications Decency Act allowed owners to use that business model without liability for user-provided content, but it doesn’t mandate open access. Under the pressure of events, the platform owners have reminded us that as owners they have the power to decide what will and will not be published on their platforms, as well as what they say about what is published.

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