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Deplatforming in the tech sector is hotly debated, and at times, it might 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, with the implication that imposing 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 deplatformto exclude content, individuals, or businesses from critical serviceshas been utterly common and regularly debated throughout American history. In the common law and the major infrastructural and utility sectorstransportation, communications, energy, and bankingAmerican 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 deplatformingof balancing the du-ties 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 to deplatform? 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 servicesincluding contemporary tech platforms. The Article considers ways in which past deplatforming practices can inform current debates over the public and private governance of tech platforms.
Followed by a Q&A with RSM Visting Scholar Kate Klonick.
Professor Ganesh Sitaraman holds the New York Alumni Chancellors Chair in Law and is the Director of the Vanderbilt Policy Accelerator. He teaches and writes about constitutional law, the regulatory state, economic policy, democracy, and foreign affairs.
Sitaramans most recent book is Networks, Platforms, and Utilities: Law and Policy (2022) (with Morgan Ricks, Shelley Welton & Lev Menand). He is also the author of The Great Democracy: How to Fix Our Politics, Unrig the Economy, and Unite America (Basic Books, 2019); The Public Option (Harvard Univ. Press, 2019) (with Anne Alstott); The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic (Alfred A. Knopf, 2017), which was one of The New York Times 100 notable books of 2017; and The Counterinsurgents Constitution: Law in the Age of Small Wars (Oxford Univ. Press, 2012), which won the 2013 Palmer Civil Liberties Prize.
