Private Company Is Not the End of the Debate Over Platform Power

"They're a private company. They can do whatever they want." If you have ever said anything critical about a social media ban, someone has delivered that line to you with the satisfied smile of a man who has just won an argument by announcing that it is over. It has the shape of a legal doctrine and the weight of a bumper sticker.

I want to take it seriously, because the person saying it is often a conservative, and he has a real tradition behind him. But I also want to show you why it is the start of the conversation and not the end of it. The same people who say "private company" about a platform would be furious to hear it about a bank that closes an account because of a customer's opinions, or about a telephone company that refused to connect calls from a political party. So the principle has limits, and the whole argument is about where they are.

The argument at its strongest: property, association and the baker

Let me state the libertarian case the way its best defenders would, because you cannot beat a view you will not describe fairly.

1. The First Amendment restrains government, not private parties. "Congress shall make no law" abridging speech. A platform is not Congress, and its moderators are not the state. When a company removes your post, you have lost a place to speak. You have not been censored in the constitutional sense, and you can speak somewhere else.
2. Owners decide what happens on their property. A newspaper decides which letters to print. A bookstore decides which books to stock. A talk-radio station decides who gets the microphone. Nobody thinks a conservative host should be forced to give an hour to a lecture he despises.
3. Forcing a company to carry speech is itself a speech violation. A rule that says "you must host this" is a government order about what to say or not say. Conservatives have been on the right side of that principle many times, and its best examples cut in our favor: the Court held in 303 Creative v. Elenis (2023) that Colorado could not compel a web designer to create expressive work she objected to, and in Hurley (1995) that parade organizers could not be made to carry a banner they did not want.
4. The remedy is competition. If you dislike a platform, build another, or move. Government that picks winners and sets the rules of the digital square will use them against you when the next administration arrives.

Every one of those points has real force, and the last one deserves to be underlined. A power that the right wants to use on a platform today is a power the left will use tomorrow. The old line in politics still holds: don't build a weapon you wouldn't want your opponent to inherit.

So where does the argument go wrong? It goes wrong when it treats "private" as an answer rather than as a category that the law has always sorted.

Private businesses have always owed some duties

American law has never said that a business open to the public may do absolutely anything it likes. It has recognized, since before the Founding, a class of businesses that owe a duty to serve everyone who comes on the same terms.

The English common law called them common carriers and innkeepers. The ferryman who controlled the only crossing, the innkeeper who kept the only bed for twenty miles on a winter road, the blacksmith in a one-forge village: each was a private business, and each was bound to serve any customer who paid the usual price and behaved. The reason was practical. If you are the only way across the river, refusing a customer is not a mere business decision. It is the power to control who gets to travel.

American courts carried this forward. In Munn v. Illinois (1877), the Supreme Court upheld state regulation of grain elevator rates, reasoning that private property devoted to a use in which the public has an interest is "affected with a public interest" and may be regulated accordingly. The doctrine was later applied to railroads, telegraphs, telephones and utilities. It survives in the rule that your phone company cannot decide which calls to complete based on what you are saying.

That is the conservative intellectual tradition, not a leftist invention. It rests on an idea the Founding generation understood: concentrated private power over an essential channel can be as dangerous as government power over it, and the law may treat the two alike when the channel is essential.

Justice Thomas and the 2021 concurrence

In April 2021, the Supreme Court disposed of Biden v. Knight First Amendment Institute at Columbia University. The case had been about whether President Trump violated the First Amendment by blocking critics from his Twitter account. By the time the justices acted, he had left office, and the Court sent the case back with an order vacating the lower-court ruling as moot.

Justice Clarence Thomas wrote a separate concurrence, and it has been quoted ever since. He did not decide the question. He asked it. He noted that a handful of private companies control vast amounts of speech, that the law has historically allowed legislatures to impose obligations of nondiscrimination on common carriers and places of public accommodation, and that the Court might eventually need to consider whether digital platforms fit that history. He also noted that the platforms' power over speech had become concentrated in a way that history did not offer many parallels for. The concurrence did not say "the Constitution requires" anything. It said, in effect: this is a real question, and the label "private" does not answer it.

I think that is the right way to read him, and it is the answer to the bumper sticker. A justice who has spent a career defending limited government is saying that a legislature may consider treating the biggest platforms as common carriers. Whether a legislature should, and whether such a law would survive the First Amendment, is a separate matter.

The Florida and Texas laws

Legislatures did try. In 2021, Florida passed a law (Senate Bill 7072) restricting large platforms from banning candidates for office and from using certain moderation tools, and requiring platforms to apply their standards consistently. Texas passed House Bill 20 the same year, barring large platforms from censoring users based on viewpoint, with exceptions for unlawful content and a few other categories.

Both were challenged by trade associations representing the platforms, and the lower courts split. In 2022, the Eleventh Circuit, based in Atlanta, held that most of Florida's law was likely unconstitutional because content moderation is an exercise of editorial judgment protected by the First Amendment. That same year, the Fifth Circuit, which covers Texas, upheld the Texas law, with Judge Andrew Oldham writing the opinion and rejecting the idea that the platforms have a First Amendment right to censor their users as they please.

Two federal appeals courts. Two opposite answers. That is exactly the kind of conflict the Supreme Court exists to resolve, and it agreed to hear both.

Moody v. NetChoice (2024)

The Supreme Court decided Moody v. NetChoice and NetChoice v. Paxton together in July 2024. What it decided is easy to get wrong, so let me be careful.

First, the procedure. Both cases came as facial challenges, meaning the platforms asked the courts to strike the laws down in all their applications, not just as applied to one situation. The Supreme Court held that neither of the lower courts had done the work that kind of challenge demands, which is to identify everything the laws cover and weigh the constitutional and unconstitutional applications. So it vacated both rulings and sent the cases back. In that narrow sense, the Court did not strike down Florida's law or Texas's.

Second, the substance, and here is where the case matters. Justice Kagan wrote the opinion for the Court. It said that when a platform curates and arranges a feed of other people's posts, deciding what to include, exclude, promote and demote, it is engaging in expressive activity that the First Amendment protects. The Court compared it to the classic cases: Miami Herald v. Tornillo (1974), where a state could not force a newspaper to print a candidate's reply, and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), where parade organizers could not be required to include a group whose message they did not want. The Court also noted that a state's interest in "balancing" the marketplace of ideas is not a valid reason to override an editor's choices. A government that decides it wants a different mix of speech does not get to ask the editors to supply it.

Third, the limits. The Court was explicit that its discussion applied to the platform features at issue in the cases, such as Facebook's News Feed and YouTube's homepage, and that different services and functions might be analyzed differently. Several justices wrote separately to say that the lower courts had to separate out what a platform does when it curates a feed from what it does in other roles, like running direct messaging or providing a marketplace, where the speech analysis may not look the same. Justice Alito, joined by Justices Thomas and Gorsuch, agreed with the judgment but sharply criticized the majority's reasoning about the platforms' expressive status, saying it went beyond what was needed.

So what did the Court say? Not "platforms are private and can do whatever they want." Not "the states can order them to carry anything." It said that a lot of what a platform does to curate speech is its own speech, and that the state's power to regulate that part is limited, but it left open the question of what can be done about the other parts.

Why "private company" does not end the argument

Now put it together in the form of a debate. Here is the strongest version of the opposing position, and then my answer.

The opposing position. The platforms are private. The Court has now told us that when they moderate they are exercising their own editorial judgment, protected by the First Amendment. A conservative who has spent a career defending property rights and free association, who stood with the baker and the parade organizer, cannot turn around and demand that the state take over a company's editorial desk. The principle is principle, and you do not get to suspend it when you are the one who got removed.

The answer, in numbered points.

1. That is a good argument for one kind of law and not another. If the state says "you must carry this candidate's posts," Tornillo and Hurley apply, and I agree it is in trouble. But a law that bars a platform from discriminating against a person in providing a service is a different type of law than one compelling a particular message. Telephone companies are not editors, and nobody thinks the phone company speaks when it connects your call. The more a company acts like a pipe, the more the common-carrier tradition fits. The more it acts like a magazine, the more Tornillo fits. The honest legal question is which each feature resembles.
2. "Private" has never meant "unregulated." Public-accommodation law, anti-discrimination law, consumer-protection law and antitrust law all apply to private firms every day. The relevant question is not whether an entity is private. It is whether the law has a good reason to impose a duty on it and whether that duty is consistent with the Constitution.
3. Market power matters to the libertarian too. The libertarian answer, "build your own," assumes a functioning market. If a handful of firms control the channels of mass communication, then "build your own" is the same advice as "build your own railroad." Competition policy, which is how conservatives from Robert Bork onward have thought about monopoly, is a legitimate response, and I'll note it does not require telling anybody what to say.
4. The pipes are not the feeds. The Court's own reasoning suggests a line worth exploring: infrastructure, such as web hosting, domain registration, payment processing and mobile carriers, may look more like common carriage than a curated feed does. If a company can be shut out of those services because of its viewpoint, the "build your own" answer collapses, because there is no second set of pipes. I'd argue conservatives should push the law toward that infrastructure layer and away from policing the editorial choices of a feed.
5. The prudential point still holds. Whatever the right does, assume the law will be used by the other party. A state law that forces platforms to carry "viewpoints" will be enforced by an attorney general who may not share yours. That is why the narrow, content-neutral version, which says nothing about what to say and everything about how a platform treats customers and how it discloses its rules, is wiser than a crusade.

What the courts told conservatives, honestly

I would be misleading you if I said the Supreme Court gave the Texas and Florida approach a win. It did not. The majority opinion in Moody is a strong statement for editorial freedom, even though the formal outcome was a remand. If you wanted the Court to say that the biggest platforms are common carriers, you did not get it, and you should not tell your friends you did.

But I would also be misleading you if I said the question is closed. The Court did not decide that every function of every platform is protected editorial speech. It said the analysis must be done feature by feature. It did not say that a legislature may never impose nondiscrimination duties on the infrastructure that carries speech. And Justice Thomas's invitation from 2021 has not been withdrawn.

For the wider context, the legal limits on liability are in Section 230 Explained in Plain English, Down to the Twenty-Six Words, and the reform proposals, tested against real websites, are in Four Ways to Reform Section 230 and What Each Would Do to Real Websites. If you want to understand how press freedom has been used and abused by people on both sides, the history is in The Founders' Partisan Press Was Far Nastier Than Anything on Your Feed and the leading speech cases are in Eight Supreme Court Cases That Explain What the First Amendment Protects.

A verdict

Here is mine. "They're a private company" is a fine answer to a narrow question and a lazy answer to a big one. It is right that the government should not run a platform's editorial desk. It is wrong that private power over speech is somehow beyond debate, since the common-carrier tradition says the opposite, and that tradition came from judges and legislators long before anyone had heard of the internet.

The sensible conservative position, I'd argue, has three parts. Defend editorial freedom, because it protects your newspaper and your church bulletin as much as theirs. Press for competition and real alternatives, because power that cannot be escaped is the actual danger. And look hard at the infrastructure layer, where the case for common-carrier treatment is strongest and where the editorial-freedom objection is weakest.

Anyone who tells you the answer is obvious in either direction is selling something.

The bottom line

• "Private company" starts the argument. The law has long imposed duties on private businesses that serve the public, including common carriers, innkeepers and public accommodations.
• Thomas asked the question in 2021. His concurrence in Biden v. Knight Institute did not decide anything, but it opened the door to treating dominant platforms like common carriers.
• Moody v. NetChoice (2024) went the other way for feeds. The Court sent the Florida and Texas laws back on procedure, but said curating a feed is expressive activity the First Amendment protects.
• Aim at the pipes, not the editors. If you want reform that can survive in court and that you would be comfortable seeing in the hands of your opponents, focus on competition and on the infrastructure that carries speech.
• Be consistent. The rule that protects your favorite platform's choices also protects the choices of the ones you dislike. Pick a principle you can live with when the other side is in charge.