Congressional Republicans want to pass legislation taking aim at the legal shield that protects tech platforms from liability for the content users post. Supreme Court Justice Clarence Thomas is making clear he hopes they do.
GOP lawmakers in recent years have made a top priority of reforming Section 230 of the 1996 Communications Decency Act, which includes a provision protecting tech platforms from liability for users’ posts and for their own moderation practices. And Thomas recently asked for an “appropriate” case to be brought to the Supreme Court to void the “sweeping immunity” that he says lower courts have falsely ascribed to Section 230. Thomas seemed to suggest a majority of five Supreme Court justices are prepared to end, or at least significantly curtail, Section 230.
Thomas authored a March 7 statement denying certiorari to a 15-year-old Jane Doe from Texas who was raped and beaten by an adult sexual predator she met on Facebook in 2012. Facebook petitioned the Texas Supreme Court to dismiss a portion of Doe’s suit that the tech giant argued fell under its Section 230 legal protections. The Supreme Court agreed with that argument.
But Thomas in the statement called on his fellow justices to “address the proper scope of immunity” under Section 230 available to online companies.
“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,” Thomas wrote.
Thomas was essentially explaining, “This is not the right case to deal with this, but I’m going to tell you how I feel about it,” Oscar A. Gomez, a partner at EPGD Business Law, told the Washington Examiner.
Gomez described Thomas’s statement as a “call to action” for lawmakers to act on making changes to Section 230 the way they see fit, rather than the high court weighing in on matters surrounding “publisher immunity,” as Thomas said in his written response.
Thomas’s recent remarks echo a 2021 concurrence in which he slammed the “unprecedented” amount of “control” possessed by a few social media companies, according to court documents.
“These comments that don’t have legal impact are not on anything that’s been briefed before the court but are sort of his riffing on what he thinks about Section 230,” Neil Chilson, a former Federal Trade Commission chief technologist, told the Washington Examiner. Thomas “has done that three times” now, Chilson added.
Chilson described opposing party views on Section 230 as somewhat of a paradox, noting Republicans want to narrow its scope of immunity to mitigate a so-called anti-conservative bias among Big Tech platforms. Democrats, meanwhile, want to reform the law because “it enables the platforms to leave up too much information.”
“The problem is that the way Thomas would interpret it, it would take basically any conduct or any type of third-party speech on the platform and say that the platform has an obligation to remove certain types of things,” Chilson said. “And if that’s true, then Section 230 doesn’t do anything anymore.”
So far, efforts to rein in the influence of Big Tech within the halls of Congress have fallen flat, other than aiming to limit the worst of online interactions with real-world consequences, such as measures against predatory behavior and the sexual exploitation of minors.
In February, a bill aimed at limiting online sexual exploitation of minors made it out of a Senate committee markup hearing over objections from privacy and human rights groups. They warned of unintended consequences presented by the legislation as some lawmakers stoked fears of privacy violations should the bill become law.
Running for the Democratic nomination in 2020, President Joe Biden said he wanted to “revoke” Section 230. But even if the House and Senate go Republican this fall, Biden would likely be at odds with a GOP-passed version of limiting Section 230 protections, considering the different ways the parties view the law.
