Briefing · law

Should social media platforms be regulated like utilities?

25 May 2026

A two-position audit on platform power and First Amendment jurisprudence in the age of algorithmic curation.

The commentary

Three positions, audited in full

Each makes a different kind of case against the reports: the measure, the load-bearing input, the clock.

Yes: they're infrastructure now

1 Platform Governance and the First Amendment Yale Law Journal, 2024 Full audit public utility

Major social media platforms function as essential infrastructure for public discourse and should face common-carrier obligations. Roughly 70% of US adults get news from social media; concentration in 3–4 platforms creates conditions analogous to telecommunications monopolies that historically warranted regulation. The Knight Foundation's 2023 study finds platform-deplatforming has tangible effects on civic participation, parallel to historical denial of common-carrier access.

Audit Equivocation Logic

The "public square" metaphor equivocates between two senses: (a) a physical space where speech happens, and (b) a private service designed around algorithmic curation. Common-carrier obligations developed for (a) don't straightforwardly map to (b).

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No: they're private editorial actors

2 Moody v. NetChoice, LLC Supreme Court of the United States, 2024 Full audit private editorial

Social media platforms exercise editorial judgment protected under the First Amendment and cannot be forced to carry speech they decline to publish. The Supreme Court's 2024 Moody decision held content moderation is protected expressive activity. Editorial discretion was the historical justification for newspapers being immune from common-carrier obligations even at higher concentration than today's platforms.

Audit Slippery Slope Logic

The argument that *any* common-carrier obligation will undermine speech-protective frameworks presumes a strong slippery slope from narrow regulation to broad compelled speech, without engaging with the actual proposed regulatory frameworks that distinguish access regulation from content compulsion.

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The field: who stands where

Each voice in its strongest form. Inclusion is not agreement.

The map · 2 audited positions

public utilityprivate editorial

1 2

1 2numbers match the cards below · tap a disc to read the source

how to read the map

Tap a numbered marker to jump to that voice’s card; the same number sits on the card. A wider marker means we are less sure exactly where that voice sits on the axis (how placement works).

The shared assumption

Both positions treat the question of regulation as primarily a constitutional rather than political-economic question. The constitutional frame assumes the relevant analysis is whether regulation is *permitted*. But the prior political-economic question of whether algorithmic curation systems should be permitted to exist in their current form, with their current incentive structures, is not on the table in either position. The disagreement is constrained to which constitutional outcome to accept rather than what political economy of digital communication a society should construct.

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Sources

Positions · 2

-2 Platform Governance and the First Amendment · Yale Law Journal, 2024 (placement: med)
+2 Moody v. NetChoice, LLC · Supreme Court of the United States, 2024 (placement: med)

Further evidence · 2

News Consumption Across Platforms, 2023 · Pew Research Center, 2023 : Survey data behind the utility position's "roughly 70% of US adults get news from social media" claim; descriptive, takes no policy stance.
The First Amendment, Content Moderation, and the Public Square · Harvard Law Review, 2023 : Law-review analysis of content moderation as protected editorial activity; argues the private-editorial side but is not separately audited here.