By Andrew Keane Woods. Full Text.
Our law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become our public spaces, but because they are privately owned and “merely” coordinate private ordering, they operate without the guardrails of many of our most important laws.
For example, anti-discrimination law once covered nearly all short-term bookings at inns and hotels; today, nearly a quarter of the hospitality market is controlled by Airbnb, where the majority of bookings are in owner-occupied homes that are exempt from anti-discrimination law’s reach. The First Amendment once protected against the gravest threats to free speech; today, scholars question whether it is fit to handle the novel speech problems presented by social media. The Fourth Amendment once prevented the police from gaining warrantless access to our most private information; today, the police simply buy that data on the open market. The list goes on. While criminal law and speech scholars have noticed the state action problem in constitutional law, and civil rights scholars have discussed the private carveouts in anti-discrimination law, there is little scholarship moving beyond these silos to explore how these different regulatory puzzles stem from the same fundamental problem.
Recognizing that the public/private distinction is the core of the platform problem has a number of implications. It helps explain the platforms’ persistent ability to evade meaningful regulation and it suggests a new way forward—a more suitable remedy than using blunt antitrust tools to address our biggest social ills. Specifically, courts and legislators should revive and expand the legal doctrines that recognize the imperfect nature of our law’s distinction between public and private. These private-but-public doctrines—like public accommodations, the public policy doctrine in contract, the public trust doctrine in property, and more—have long recognized the limits to private ordering in the public interest. It is time to update them for the digital age.