According to Justice Thomas, the scope of Section 230 immunity needs to be revisited

Justice Clarence Thomas recently issued a statement on the Supreme Court’s denial of certiorari in Jane Doe v. Facebook. In it, Thomas called for the court to “address the proper scope of immunity under §230 in an appropriate case.”

The law, part of the Communications Decency Act, serves to shield companies like Twitter and Facebook from liability stemming from information published by users. Specifically, section (c) of the law states:

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of-

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

In Jane Doe v. Facebook, an adult male sexual predator used Facebook to lure 15-year-old Jane Doe to a meeting. Shortly after, Doe was repeatedly raped, beaten, and trafficked for sex. The girl eventually escaped and sued Facebook in Texas state court on the grounds that Facebook allegedly violated Texas’ anti-sex trafficking statute and committed other common-law offenses.

After Facebook sought a writ of mandamus, the Texas Supreme Court allowed Doe’s sex trafficking claim to proceed but dismissed her common-law claims pursuant to Section 230. 

The United States Supreme Court declined to grant certiorari based primarily on procedural technicality. While Justice Thomas agreed with the court’s decision on procedural grounds, he emphasized the need to reevaluate the protections and immunity afforded by Section 230.

For the most part, courts have held that internet platforms are not deemed to be “publishers” and are thereby immune when a claim “‘stem[s] from [the platform’s] publication of information created by third parties.’” Thomas’ concern, however, was that such a reading would compel dismissal of claims against internet companies who “fail to warn consumers of product defects” or fail to take reasonable steps “to protect their users from the malicious or objectionable activity of other users.”

Thomas pointed to Doe’s case to clarify his concerns. In his statement, Thomas noted:

Here, the Texas Supreme Court afforded publisher immunity even though Facebook allegedly “knows its system facilitates human traffickers in identifying and cultivating victims,” but has nonetheless “failed to take any reasonable steps to mitigate the use of Facebook by human traffickers” because doing so would cost the company users—and the advertising revenue those users generate. Fourth Amended Pet. in No. 2018–69816 (Dist. Ct., Harris Cty., Tex., Feb. 10, 2020), pp. 20, 22, 23; see also Reply Brief 3, n. 1, 4, n. 2 (listing recent disclosures and investigations supporting these allegations). It is hard to see why the protection §230(c)(1) grants publishers against being held strictly liable for third parties’ content should protect Facebook from liability for its own “acts and omissions.”

While Thomas recognized that Congress could, ultimately, step in and define the scope of Section 230, he opined that the Supreme Court should do so in an appropriate case if Congress refused or failed to do so.

Thomas raises some very compelling arguments. If an internet company turns a blind eye to wrongdoing despite knowing that such misconduct takes place on its platform, should the company enjoy immunity under Section 230?

Doe’s case is not the first where concerns about Section 230 immunity have been raised. When the New York Post published a bombshell story that detailed a web of emails and transactions allegedly involving Hunter Biden, various social media platforms blocked its publication. This action prevented others from disseminating the story, sparking calls to eliminate or redefine Section 230 immunity.

On other occasions, several platforms unilaterally decided to suspend former President Trump (and other conservatives) due to political differences. Of course, these decisions invite potential First Amendment concerns.

Thomas correctly points out that the Supreme Court must reevaluate the scope of immunity under Section 230.

Incidentally, the justice raised similar concerns when the court declined to review the scope of Section 230 in the case of MalwareBytes Inc. v. Enigma Software Group USA, LLC. A copy of Thomas’ statement on that case can be found here. One of his main concerns was that lower courts were interpreting the provisions of Section 230 to confer far more immunity to online platforms than the law requires.

The scope of immunity under Section 230 must be revisited and redefined. Ideally, Congress would take the lead in such efforts (taking extraordinary care not to impose liability too broadly, leading to more suppression of speech for fear of potential exposure). If Congress fails to do so, perhaps the Supreme Court should do so when the appropriate case comes before it.

Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point. 

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