The U.S. Supreme Court has passed on an opportunity to corral Section 230 of the Communications Decency Act. And that’s dismaying to Justice Clarence Thomas, who on Tuesday issued a lengthy statement describing why he would seize a chance to make it easier to sue online platforms.
The case is Malwarebytes, Inc. v. Enigma Software Group USA, LLC, which deals with Section 230 in the anticompetitive context. In understanding Thomas’ expressed wish to take up a case over Section 230, the facts of this particular dispute aren’t quite as important as the animus that has arisen over a 1996 law that gives online platforms immunity over content posted by third parties.
There was a time not terribly long ago when Section 230 remained relatively obscure. It was enacted in the mid-’90s in reaction to some developments in courts. The overall goal at the time was to encourage content moderation by telling digital services that they wouldn’t be deemed “publishers” of content posted by others even if they exercised some editorial control. Today, that objective has been largely lost. Instead, the law has become a punching bag to those on the right who believe it enables online platforms to censor conservative thought and to those on the left who feel it shields online platforms from doing more to counter hateful content. As such, both President Trump and Democratic nominee Joe Biden agree that something should be done to curb Section 230, even if they disagree about the reasons why.
With that context, Thomas comes forward to question how courts are “reading extra immunity” into Section 230, whether it’s discarding “the longstanding distinction between ‘publisher’ liability and ‘distributor’ liability,” “giving Internet companies immunity for their own content,” and protecting online companies “from a broad array of traditional product-defect claims.”
(Read his full statement after a list of other cases the Supreme Court mostly rejected today.)
Section 230 co-authors Ron Wyden and Chris Cox believe that the law has functioned well and as intended, but Thomas asserts that courts have departed from Congress’ intention and the text itself which states, “No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.”
Thomas attacks recent decisions on the Section 230 front including ones involving disputes over terrorism, child pornography and racism.
“Paring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct,” he writes. “It simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail. Moreover, States and the Federal Government are free to update their liability laws to make them more appropriate for an Internet-driven society.”
Thomas ends with a suggestion — or maybe a call to action — that the high court may one day take a deeper look at the subject. As his statement puts it, “Without the benefit of briefing on the merits, we need not decide today the correct interpretation of §230. But in an appropriate case, it behooves us to do so.”