Supremes’ Thomas Lays Down Section 230 Marker

Justice Clarence Thomas
Supreme Court Justice Clarence Thomas wants the high court to weigh in on Section 230 immunity granted to online platforms. (Image credit: U.S. Supreme Court)

The critics of Section 230, and they have been multiplying in recent weeks, have a friend in high places: the U.S. Supreme Court.

Justice Clarence Thomas has weighed in strongly on the side of those who argue the lower courts have stretched the section beyond its original statutory meaning, something judicial conservatives, which would include Thomas, have issues with in general. He may even have a like mind in the judge likely to become newest member of the court.

Thomas has an issue with Section 230 specifically, and is rooting for an opportunity to take it up in the Supreme Court. His commentary on the Hill and by FCC chairman Ajit Pai as the issue burned hot in the runup to the Nov. 3 election.

Section 230 is the provision of the Communications Decency Act that grants social-media sites like Facebook and Twitter immunity from civil liability for how they choose to moderate third-party content, either taking down content some might argue should stay up, or leaving up content that others think should come down. It’s actually the only provision left after the rest of the act was struck down by the courts.

Wide-Ranging Effects

Changes to the provision could affect not only social-media giants, but the comment sections on TV station websites and internet service providers that arguably are covered under the “computer services” definition of those subject to the section.

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The FCC has signaled it plans to follow President Donald Trump’s lead and “clarify” the section, apparently in a way that will regulate third-party content within Section 230. That will almost certainly be taken to court by tech giants who have plenty of money to wage a legal war and who have argued that if they become liable for social media content on their sites, it could chill speech or blow up their business models entirely.

That means the issue could well wind up in the Supreme Court.

The issue has become a flashpoint because it has driven political opposites together in questioning whether tech giants need or should get that blanket immunity, and whether that shield has been used to protect sex trafficking, meddling in elections, censorship and more. But it has also divided them over whether the section is being used to censor conservative speech by the liberal-leaning Silicon Valley set.

The president, in part driven by his ire at Twitter for flagging and burying some of his tweets as violations of its policies against misleading speech, wants Section 230 reined in or eliminated. But Hill Democrats have issues with the section as well.

And so, apparently, does Justice Thomas.

Thomas outlined his issues in a lengthy commentary on the Supreme Court’s decision not to hear an appeal of a case involving Section 230. Thomas actually agreed the court should not hear that case, which dealt with whether the section provided immunity for content blocking technology, but apparently felt strongly enough about the immunity for content blocking itself to weigh in at length — usually the court simply releases a list of appeals it is denying, called the “cert” list, with no explanation.

But Thomas, who is reticent in oral argument, is not so in his periodic cert explanations.

Thomas said he was writing to explain “why, in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by internet platforms.” 

He clearly feels it does not. “Adopting the too-common practice of reading
extra immunity into statutes where it does not belong, courts have [granted] sweeping protection to Internet platforms,” Thomas said.

He argued that “paring back the sweeping immunity courts have read into Section 230” would not ipso facto lead to defendant liability. “It simply would give plaintiffs a chance to raise their claims in the first place,” he said.

On the other hand, he said, extending the clause beyond its statutory underpinnings, as he argues has happened, has “serious consequences.”

Critics of Thomas’s view see serious consequences as well.

Holding websites liable for content they edit in any way, as Justice Thomas proposes, could, conversely, discourage websites from attempting to make hard calls, such as by blotting out objectionable words, including racial epithets, while leaving other content up,” said Berin Szóka, senior fellow at tech policy think tank TechFreedom, in reaction to what he called Thomas’ unwarranted judicial commentary.

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Attorney Floyd Abrams, who has argued over a dozen cases before the Supreme Court, agrees that kneecapping Section 230 would definitely chill speech. “The easiest way that the Twitters of the future can avoid problems like this is not to fact check, no matter how false the information is, no matter how outrageously false the information is,” he said in an interview with Sirius XM radio following release of the executive order back in May.

Thomas may have support from the judge expected to become the court’s newest member. 

Topic at Barrett Hearings

During her Supreme Court confirmation hearing Sen. Josh Hawley (R-Mo.) tried to get Judge Amy Coney Barrett to weigh in on the section, citing Thomas’s comments. 

Citing Thomas, Hawley said that the courts, at the behest of Big Tech, had dramatically rewritten the section, including changing the liability standards and the distinction between publisher and distributor liability, and extending it to product defect claims.

Barrett said she had not ruled on a Section 230 case, but when asked, in general, what she thought the “danger” was of courts departing from statutory text and substituting their own judgment, she weighed in. 

Barrett said that without respect to the specific section, the danger of courts going beyond the language of statute was that it “subverted the will of the people.” She said that since judges are not elected and serve for a lifetime, if they misconstrue or bend statutes to their idea of what would be good public policy, then it deprives the people of the chance to express the policies that they want through the democratic process."

Hawley said he was convinced that was what had happened with the courts and Section 230. 

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.