>> It’s one thing to say you have to transmit someone’s speech from here to there and then have no more to do with it, but it’s something else entirely to say “you must host this person’s speech forever.”

> This is exactly what we ask of phone companies. As long as the customer has an account, the phone company routes their calls, forever, or until they cease to be a phone company.

The phone company hosts a phone call for you and someone else. After you hang up, the phone call is over. Unless the contract promised as much, you have no expectation of later being able to ask the phone company to give you a recording of the call. The person on the other end has no expectation of later being able to ask the phone company to tell them what you said. The call is one and done. A social media post? Not so. You post, and as long as no automation removes it and no person manually removes it, the post stays and continues getting served.

As long as a customer has an active contract with the phone company, the phone company must continue to provide calls unless someone triggers an exit condition in the contract, in which case the phone company would be able to remove the account. But your average phone contract will not guarantee you a service for hosting an individual phone call forever.

Currently, any TOS you'll find from the big social media sites will allow the sites to remove any post or user for any reason or no reason at all. That's an exit condition that's always active. Everyone gets the same contract. Currently, the contract lasts 0 seconds, and possibly longer if the social media site decides to keep your posts up, doesn't decide to take them down, or forgets to take them down. If you turn certain social media companies into common carriers, then where would you draw the line relative to Facebook and a Mastodon instance? Twitter and a social media site for game discussions? Truth Social and Bluesky? Where does Hacker News fit into this? Would you turn all social media sites into common carriers, and how would you define a social media site? Keep in mind, a phone company doesn't stop being a common carrier if the phone company loses market share.

Mike Masnick's "fungibility" argument is unclear at best, but his point that transportation service is transient still stands [1]:

> Social media, from the very beginning, was about hosting content that you put up. It’s not transient, it’s perpetual. That, alone, makes a huge difference, especially with regards to the 1st Amendment’s freedom of association. It’s one thing to say you have to transmit someone’s speech from here to there and then have no more to do with it, but it’s something else entirely to say “you must host this person’s speech forever.”

...

> It is hosting content perpetually, not merely transporting data from one point to another in a transient fashion.

The average train company is a common carrier. You book a trip from station A to station B. You take the trip, and that's it. You don't get to take another trip with the same booking unless the contract said so.

Assume that ISPs are common carriers (which is not true because the FCC under Ajit Pai decided that ISPs are not common carriers; however, making ISPs common carriers is easier to justify than making social media websites common carriers). An ISP transmitting a website to you is not obligated to host the website, because transmitting bits doesn't functionally require storing them beforehand and because a large chunk of the responsibility of making sure that the website data to be transmitted exists right at this moment falls on the website owner.

Now assume that a particular social media website is a common carrier. You haven't made the case that social media sites must store posts. The social media site must allow anyone to sign up. The social media site must transmit any posts whose contents and audience have been specified, but it would be your responsibility to make sure that the social media site receives the contents to put in the posts every time someone wants to receive those posts. For example, you set a post to followers-only and send it. The post will be sent SMS-style to everyone who is currently following you. If you want followers to continually request a post, you are responsible for setting up an automated system to give the social media website the right post content i.e. you would have to host the posts to be transmitted. If the website offers to automatically read a passive folder of posts you want to repeatedly transmit, then the website has to offer that capability to everyone. However, the website can discriminate in deciding whose posts to host. The website might offer to host your posts, but doesn't have to do so for some amount of time unless the contract specifically says so, and doesn't have to make an identical offer to other users.

[1] https://www.techdirt.com/2022/02/25/why-it-makes-no-sense-to...