University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2021 The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy Christopher S. Yoo University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Communication Technology and New Media Commons, Digital Communications and Networking Commons, First Amendment Commons, Internet Law Commons, Law and Economics Commons, Policy History, Theory, and Methods Commons, Science and Technology Law Commons, and the Science and Technology Policy Commons Repository Citation Yoo, Christopher S., "The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy" (2021). Faculty Scholarship at Penn Law. 2576. https://scholarship.law.upenn.edu/faculty_scholarship/2576 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact
[email protected]. THE FIRST AMENDMENT, COMMON CARRIERS, AND PUBLIC ACCOMMODATIONS: NET NEUTRALITY, DIGITAL PLATFORMS, AND PRIVACY Christopher S. Yoo* Recent prominent judicial opinions have assumed that common car- riers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A re- view of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial dis- cretion over whom to carry or host.