Free Speech

Justice Thomas Writes in Favor of a Narrow Reading of 47 U.S.C. § 230

He seems open to materially increasing Internet service and content providers' liability for libels posted by their users, and based on other user misconduct.

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From his statement today respecting the denial of certiorari this morning in Malwarebytes, Inc. v. Enigma Software Group USA, LLC:

I write to explain why, in an appropriate case, we should consider whether the text of this increasingly important statute [47 U.S.C. §230] aligns with the current state of immunity enjoyed by Internet platforms….

[The statute:] Enacted at the dawn of the dot-com era, §230 contains two subsections that protect computer service providers from some civil and criminal claims. The first is definitional. It states, "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." §230(c)(1). This provision ensures that a company (like an e-mail provider) can host and transmit third-party content without subjecting itself to the liability that sometimes attaches to the publisher or speaker of unlawful content.

The second subsection provides direct immunity from some civil liability. It states that no computer service provider "shall be held liable" for (A) good-faith acts to restrict access to, or remove, certain types of objectionable content; or (B) giving consumers tools to filter the same types of content. §230(c)(2). This limited protection enables companies to create community guidelines and remove harmful content without worrying about legal reprisal.

[The publisher/distributor distinction:] Congress enacted this statute against specific background legal principles. See Stewart v. Dutra Constr. Co. (2005) (interpreting a law by looking to the "backdrop against which Congress" acted). Traditionally, laws governing illegal content distinguished between publishers or speakers (like newspapers) and distributors (like newsstands and libraries).

Publishers or speakers were subjected to a higher standard because they exercised editorial control. They could be strictly liable for transmitting illegal content.

But distributors were different. They acted as a mere conduit without exercising editorial control, and they often transmitted far more content than they could be expected to review. Distributors were thus liable only when they knew (or constructively knew) that content was illegal. See, e.g., Stratton Oakmont, Inc. v. Prodigy Services Co. (N.Y. trial ct. 1995); Restatement (Second) of Torts §581 (1976); cf. Smith v. California (1959) (applying a similar principle outside the defamation context).

The year before Congress enacted §230, one court blurred this distinction…. The court determined that [a service provider's] decision to exercise editorial control over some content "render[ed] it a publisher" even for content it merely distributed. Taken at face value, [in relevant part,] §230(c) alters the Stratton Oakmont rule … [by] indicat[ing] that an Internet provider does not become the publisher of a piece of third-party content—and thus subjected to strict liability—simply  by  hosting  or  distributing  that  content. [But a] dopting the too-common practice of reading extra immunity into statutes where it does not belong, see Baxter v. Bracey (2020) (Thomas, J., dissenting from denial of certiorari [and writing about qualified immunity]), courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms….

Courts have discarded the longstanding distinction between "publisher" liability and "distributor" liability. Although the text of §230(c)(1) grants immunity only from "publisher" or "speaker" liability, the first appellate court to consider the statute held that it eliminates distributor liability too—that is, §230 confers immunity even when a company distributes content that it knows is illegal. In reaching this conclusion, the court stressed that permitting distributor liability "would defeat the two primary purposes of the statute," namely, "immuniz[ing] service providers" and encouraging "selfregulation." And subsequent decisions … have adopted this holding as a categorical rule across all contexts.

To be sure, recognizing some overlap between publishers and distributors is not unheard of. Sources sometimes use language that arguably blurs the distinction between publishers and distributors…. Yet there are good reasons to question this interpretation.

First, Congress expressly imposed distributor liability in the very same Act that included §230. Section 502 of the Communications Decency Act makes it a crime to "knowingly … display" obscene material to children, even if a third party created that content. This section is enforceable by civil remedy. It is odd to hold, as courts have, that Congress implicitly eliminated distributor liability in the very Act in which Congress explicitly imposed it.

Second, Congress enacted §230 just one year after Stratton Oakmont used the terms "publisher" and "distributor," instead of "primary publisher" and "secondary publisher." If, as courts suggest, Stratton Oakmont was the legal backdrop on which Congress legislated, one might expect Congress to use the same terms Stratton Oakmont used.

Third, had Congress wanted to eliminate both publisher and distributor liability, it could have simply created a categorical immunity in §230(c)(1): No provider "shall be held liable" for information provided by a third party. After all, it used that exact categorical language in the very next subsection, which governs removal of content. §230(c)(2). Where Congress uses a particular phrase in one subsection and a different phrase in another, we ordinarily presume that the difference is meaningful….

[Internet companies' selecting and editing decisions:] Courts have also departed from the most natural reading of the text by giving Internet companies immunity for their own content. Section 230(c)(1) protects a company from publisher liability only when content is "provided by another information content provider." Nowhere does this provision protect a company that is itself the information content provider. And an information content provider is not just the primary author or creator; it is anyone "responsible, in whole or in part, for the creation or development" of the content.

But from the beginning, courts have held that §230(c)(1) protects the "exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content." Only later did courts wrestle with the language in §230(f)(3) suggesting providers are liable for content they help develop "in part." To harmonize that text with the interpretation that §230(c)(1) protects "traditional editorial functions," courts relied on policy arguments to narrowly construe §230(f)(3) to cover only substantial or material edits and additions.

Under this interpretation, a company can solicit thousands of potentially defamatory statements, "selec[t] and edi[t] … for publication" several of those statements, add commentary, and then feature the final product prominently over other submissions—all while enjoying immunity. Jones v. Dirty World Entertainment Recordings LLC (CA6 2014) (interpreting "development" narrowly to "preserv[e] the broad immunity th[at §230] provides for website operators' exercise of traditional publisher functions"). To say that editing a statement and adding commentary in this context does not "creat[e] or develo[p]" the final product, even in part, is dubious….

[Internet companies' decisions to remove certain material:] The decisions that broadly interpret §230(c)(1) to protect traditional publisher functions also eviscerated the narrower liability shield Congress included in the statute. Section 230(c)(2)(A) encourages companies to create content guidelines and protects those companies that "in good faith … 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." Taken together, both provisions in §230(c) most naturally read to protect companies when they unknowingly decline to exercise editorial functions to edit or remove third-party content, §230(c)(1), and when they decide to exercise those editorial functions in good faith, §230(c)(2)(A).

But by construing §230(c)(1) to protect any decision to edit or remove content, courts have curtailed the limits Congress placed on decisions to remove content, see e-ventures Worldwide, LLC v. Google, Inc. (MD Fla. 2017) (rejecting the interpretation that §230(c)(1) protects removal decisions because it would "swallo[w] the more specific immunity in (c)(2)"). With no limits on an Internet company's discretion to take down material, §230 now apparently protects companies who racially discriminate in removing content.  Sikhs for Justice, Inc. v. Facebook, Inc. (CA9 2017), aff 'g (ND Cal. 2015) (concluding that "'any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune'" under §230(c)(1)).

[Internet companies' decisions about structuring their output and user interface:] Courts also have extended §230 to protect companies from a broad array of traditional product-defect claims. In one case, for example, several victims of human trafficking alleged that an Internet company that allowed users to post classified ads for "Escorts" deliberately structured its website to facilitate illegal human trafficking. Among other things, the company "tailored its posting requirements to make sex trafficking easier," accepted anonymous payments, failed to verify e-mails, and stripped metadata from photographs to make crimes harder to track. Jane Doe No. 1 v. Backpage.com, LLC (CA1 2016). Bound by precedent creating a "capacious conception of what it means to treat a website operator as the publisher or speaker," the court held that §230 protected these website design decisions and thus barred these claims.

Consider also a recent decision granting full immunity to a company for recommending content by terrorists.  Force v. Facebook, Inc. (CA2 2019). The court first pressed the policy argument that, to pursue "Congress's objectives, … the text of Section 230(c)(1) should be construed broadly in favor of immunity." It then granted immunity, reasoning that recommending content "is an essential result of publishing." Unconvinced, the dissent noted that, even if all publisher conduct is protected by §230(c)(1), it "strains the English language to say that in targeting and recommending these writings to users … Facebook is acting as 'the publisher of … information provided by another information content provider.'"

Other examples abound. One court granted immunity on a design-defect claim concerning a dating application that allegedly lacked basic safety features to prevent harassment and impersonation. Herrick v. Grindr LLC (CA2 2019). Another granted immunity on a claim that a social media company defectively designed its product by creating a feature that encouraged reckless driving. Lemmon v. Snap, Inc. (CD Cal. 2020).

A common thread through all these cases is that the plaintiffs were not necessarily trying to hold the defendants liable "as the publisher or speaker" of third-party content. §230(c)(1). Nor did their claims seek to hold defendants liable for removing content in good faith. §230(c)(2). Their claims rested instead on alleged product design flaws—that is, the defendant's own misconduct.  Cf. FTC v. Accusearch, Inc. (CA10 2009) (Tymkovich,  J.,  concurring)  (stating that §230 should not apply when the plaintiff sues over a defendant's "conduct rather than for the content of the information"). Yet courts, filtering their decisions through the policy argument that "Section 230(c)(1) should be construed broadly," give defendants immunity.

[Conclusion:] Paring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct. 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.

Extending §230 immunity beyond the natural reading of the text can have serious consequences. Before giving companies immunity from civil claims for "knowingly host[ing] illegal child pornography," Doe v. Bates (EDTex. 2006), or for race discrimination, Sikhs for Justice, we should be certain that is what the law demands. 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.

I like the broad reading of § 230 as a policy matter, and I think it's defensible as a statutory matter. And I think some of the distinctions that Justice Thomas's opinion draws, for instance between platform design features and platform publishing decisions isn't consistent with the text: Deciding how to organize your newspaper, magazine, or book, and what communicative "features" to include in it (e.g., what information to include connected to photographs), is indeed the function of a "publisher," and I think § 230 should reasonably be read as applying that to web sites and other platforms.

But on balance I think Justice Thomas's argument is a forceful and thoughtful analysis of the statutory text, and the common-law backdrop against which the text (especially terms such as "publisher") should be interpreted. And of course it will be especially important in the debate, because it's coming from a Supreme Court Justice (and one who is so admired by some and so disapproved of by others); so I thought I'd pass it along.

NEXT: No Preliminary Injunctions Against Libel

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  1. This is why Justice Thomas is a terrible justice, in general, and from a conservative (small “c”) point of view.

    This is nothing more than a recent, fevered-dream talking point making the rounds. Its not something that a judge should, sua sponte, be entertaining. It’s reminiscent of the time that Justice Thomas was like, “Hey, maybe ex post facto means ALL LAWS!” Which is amazingly stupid and ahistorical and makes you wonder what the heck he was drinking that day.

    So why is this stupid? Remember the whole stare decisis conversation that has been going on? So the rule of thumb is pretty basic. Constitutional decisions are generally thought to have weak stare decisis, while statutory decisions have stronger stare decisis. While that sounds weird, it makes a lot of sense. The reason is simple- only the Supreme Court can undo “wrong” constitutional decisions, while an incorrect statutory decision can always be undone by the legislature. Which is pretty simple.

    So, let us imagine for a second that, this entire time, the courts have been wrong about section 230. That this law that has enabled the US to have a thriving tech sector since the 90s has been completely, totally, bonkers and incorrect. That this law, which has been amended as recently as 2018(!!!!) (FOSTA-SESTA), but they haven’t changed this portion, imagine that the Court has been wrong, and everyone has been relying on the wrong decision.

    Great. Let Congress change it. They haven’t changed it, despite numerous opportunities, including in 2018.

    This is why Thomas is the most leftist, radical, terrible justice. It is not his job to re-evaluate the law based on whatever whims are going through his, and his clerk’s heads, at any given time.

    1. Calling Thomas a leftist is about as off the mark and radical as anything you accuse Thomas of.

      1. If the shoe fits, he needs to wear it.

      2. Well, going by the Reason comment board definition of “leftist”, then sure, Clarence Thomas is a leftist. Because “leftist” just means “doodyhead”. Thomas is also a Marxist and a SJW and a progressive, for the same reason.

        1. “Well, going by the Reason comment board definition of “leftist””

          I was thinking more in terms of the opposite of small “c” conservative; as in a leftist Jacobin revolutionary, someone who is quite positive that everything that everyone else “knows” must be incorrect, so long as you know better.

          1. It’s clear enough that you dislike Justice Thomas, but he doesn’t ‘need’ to do anything because you don’t like him. The same goes for Jeff, who has nothing but his assertions and childish ad hominem attacks. Your arguments would be stronger if they were not solely based in your opinions.

            1. I think it’s beyond funny that despite posting fairly lengthy and substantive reasons as to why Thomas is wrong (and, further, why this type of thing is anathema to the rule of law) …

              All I’m getting is a case of the vapors from the usual suspects because I called him …. a leftist. HA!

              Seriously. “It’s fine that you called Thomas a Jacobin revolutionary. And a terrible justice. And a radical. And he writes stuff that is stupid and ahistorical. And you intimated that his analysis in a previous, completely stupid opinion, was probably due to day drinking …

              …but when you call someone a leftist? Now, them’s fighting words!”

              Good to see people have their priorities straight.

    2. When has the strong stare decisis for statutory precedent rule applied where SCOTUS is not overturning its own precedent on a specific question, but merely overturning lower courts?

      Justice Thomas’ argument is sound and you calling him a leftist is absurd.

      1. “When has the strong stare decisis for statutory precedent rule applied where SCOTUS is not overturning its own precedent on a specific question, but merely overturning lower courts?”

        Just to be clear.

        1. There is no circuit split.

        2. There are no countervailing decisions from state supreme courts.

        3. The Supreme Court has had multiple opportunities to “correct” the appellate courts since Zeran, and did not. Because it’s not an incorrect decision.

        4. Congress, since Zeran, has revisited the CDA … most recently in 2018, and has not changed the statutory language, despite knowing exactly how the courts … ALL OF THE COURTS … read the language.

        ….But Justice Thomas know better than you, or me, or every other court that looked at the issue. Because reasons. So every single lawyer who has advised clients, and all the people who thought about revising the law (and did not), and every company that was formed, and every contract that was written, and everything that was done in reliance on a 100% accepted understanding of the statute can be undone because Thomas feels like it.

        You and your merry Jacobins can BITE ME in your STATUTORY PENUMBRAS. Why don’t you go find an unguarded guillotine to play it?

        1. While ideally every one should evaluate a judge’s opinions on their own individual reasons and merits, regardless of what they say in unrelated areas, Thomas has so many idiosyncratic and iconoclastic takes on so many areas of jurisprudence that no one else shares that it’s hard to take him seriously.

          He is the Armond White of judging.

        2. You can make the same points to varying degrees about Bostock and Title VII. Until 2017, there was no circuit split. Every federal judge who considered the issue agreed that Title VII did not prohibit sexual orientation discrimination. The Supreme Court had multiple opportunities to correct the appellate courts over the years and did not. Bills adding sexual orientation to Title VII were introduced in every Congress beginning in 1975 including in 1991 when it made major changes to the law. Do you likewise take issue with Bostock too?

          1. Of course he doesn’t.

    3. SCOTUS has never, afaik, ruled on section 230, thus there is no stare decisis *for SCOTUS* on section 230. (I’d be happy to be wrong on this, but afaict, Thomas is only referencing lower court decisions).

      I’m certainly not in favor of the political desires to eviscerate 230, but Thomas isn’t anywhere near those desires either. And while I’m not sure I’d draw the lines the same place Thomas seems to want to, I’m also not sure he’s wholly wrong, either as a matter of the text of the law, nor as a matter of best practices. (He’s probably not wholly right either).

    4. So, let us imagine for a second that, this entire time, the courts have been wrong about section 230. That this law that has enabled the US to have a thriving tech sector since the 90s has been completely, totally, bonkers and incorrect. That this law, which has been amended as recently as 2018(!!!!) (FOSTA-SESTA), but they haven’t changed this portion, imagine that the Court has been wrong, and everyone has been relying on the wrong decision.

      Great. Let Congress change it.

      I get this, but I don’t think SCOTUS thinks about lower court decisions this way. They always reserve the right to get involved.

      There is a statute I cared a lot about, 28 USC 1350, which provides that aliens can sue for torts in violation of the law of nations in federal district courts. I participated in litigation, which had gone on for two decades, developing a robust set of legal principles for hearing human rights claims in the federal courts. There was very little disagreement. The cases were consistent.

      And then the Supreme Court came in and, in three cases, upturned the entire thing. And I can tell you that the Court was singularly uninterested in what the lower courts were doing. Once it took the first case, Sosa, the only thing it cared about was how it interpreted the statute. As far as the Court was concerned, there was no stare decisis at all. It was reviewing the statute de novo.

  2. 1. Funny: video selected because it mentions “230 acres burned”. Anyone who fears artificial intelligence taking over should take heart that it isn’t happening any time soon.

    2. I sort of noticed this too:

    Deciding how to organize your newspaper, magazine, or book, and what communicative “features” to include in it (e.g., what information to include connected to photographs), is indeed the function of a “publisher,” and I think § 230 should reasonably be read as applying that to web sites and other platforms.

    Newspapers and magazines make editorial decisions of what appears on front page above the fold, or on the cover, how big headlines are, and so on. Is Facebook doing the equivalent in a different medium?

    3. In general, it all illustrates the problems caused by government trying to fine-tune their meddling to suit the current political landscape. Much better to just butt out. Freedom of association took a major hit from all racist laws and the corrective reactions, beginning for me with affirmative action, continuing with forcing bakers et al to do ignore the common “We reserve the right to refuse service” signs. Section 230 may be an improvement on the previous legal arena, but it is still just a fine-tuning of government meddling, and government enabling personal meddling and pandering to previous generations of politically-connected snowflakes, when the real solution is for people to just grow thicker skins.

    1. “3. In general, it all illustrates the problems caused by government trying to fine-tune their meddling to suit the current political landscape. Much better to just butt out. Freedom of association took a major hit from all racist laws and the corrective reactions, beginning for me with affirmative action, continuing with forcing bakers et al to do ignore the common “We reserve the right to refuse service” signs. Section 230 may be an improvement on the previous legal arena, but it is still just a fine-tuning of government meddling, and government enabling personal meddling and pandering to previous generations of politically-connected snowflakes, when the real solution is for people to just grow thicker skins.”

      I don’t understand what you’re trying to get at here. Is your idea that there would be no such thing as either publisher or distributor liability?

      1. Far as I’m concerned, liability goes back to the originator, and that requires a jury to decide and apportion.

        If I wrote a defamatory article and staple hundreds of copies to telephone poles all over town, then I can be held liable for the damages.

        If I made those copies myself at Staples, Staples has nothing to do with the damages.

        Suppose someone at Staples pushed the COPY button. That still doesn’t make them liable.

        Suppose someone at Staples helped format the page, or fixed a bunch of typoes. Does that make them partly liable? No, because they have no way of determining the truth or falsity of anything I wrote. More to the point, I originated the original thoughts.

        Suppose someone at Staples proofreads it to fix typoes, and suggests different language — stronger, more confident, more assertive. They change my “I think Joe builds crap furniture” to “Joe builds crap furniture” and so on. Now, yes, I do believe they bear some responsibility, and a jury could apportion blame to them. In fact, if my original had merely used “I think the furniture I bought from Joe was crap”, and the Staples employee changed that to “Joe builds crap furniture”, then the jury could lay all the blame on the Staples employee.

        Suppose I wrote my complaint to the local newspaper, which has a big advertising deal with a competitor to Joe, and the splash my letter on the front page, big headline and all. Even if they don’t change even a single typo in my letter, do they have any responsibility for Joe losing sales?

        IANAL, which should be obvious. Maybe I should be clearer, but that partly shows how unclear the entire problem is — that these kinds of things are infinitely variable, and trying to define boundaries with statutes is a lost cause. The only real solution is to grow thicker skins. If real measurable harm can be proven to come from my fliers, and if my fliers can be proven false, ie, Joe does not in fact build crap furniture, does even that make me liable for damages? Seems to me you’d have to go beyond that and show that I intended to lie, that I presented myself as an authority on recognizing crap furniture, and intentionally set out to destroy Joe’s reputation.

        Absent all that proof, grow a thicker skin.

        1. Once you accept that someone should be able to sue for your defamatory signs, we need some framework to decide who should be liable and under what circumstances. We could do that through common law and just let the courts decide, or we could have some laws that govern it. But somehow there needs to be some standard to adjudicate the suit over your signs.

          Prior to the CDA, the courts seemed to be veering towards a “Staples is liable for your article” model, so Congress stepped in to make it clear that they shouldn’t be. You seem to be advocating for a model that matches a broad reading of Section 230 (basically the status quo), where Congress has declared that Staples is not liable for your article, and they don’t become liable for your article just because they refused to let someone else photocopy some child porn. Most of the controversy is over whether Staples should become liable if they let you copy your article because it’s anti-baseball but won’t let some other guy copy his pro-baseball or anti-football fliers.

          But given the history, I’m not sure what choice Congress had other than to “meddle” since it seems we both agree that the direction the courts were taking was worse.

  3. Amazing how FOX News has their pulse on the one true textualist take.

    I tend to think Thomas is admirably professional and generally able to check his partisanship at the door when he’s writing for the Court, but this kind of right-wing media brained stuff shows maybe that’s forced by his collogues.

    This kind of legally questionable sound and fury does not belong in a concurrence.

    1. “I tend to think Thomas is admirably professional”

      I am increasingly of the opinion that this is not just an unsupported statement, but an unsupportable statement.

      1. Well, he says crazy, crazy things about his deeply personal continued anger and bitterness regarding liberals in his interviews but his opinions do not seem to betray that so much as a completely separate kind of sometimes conservatives sometimes not craziness about the Constitution.

        1. I don’t really agree with that at this point. Your view of his opinions are, for the most part, based on his past opinions when he would put in the yeoman’s work in an ERISA case as a majority opinion, or maybe have the “one-shot” dissent about some crank opinion he has.

          But it’s not like there has been much of a field for him to express crank unprofessional opinions in a random ERISA case.

          1. In law school I read enough of his SCOTUS main decisions and dissents on Constructional issues to see that his jurisprudence at least looks like it’s driven by his own long-held idiosyncrasies more than the chip on his shoulder.

            That’s a subjective opinion. YMMV, of course. But he’s so, SO bitter (and not getting better) I’d have to think it would out if he let it drive.

    2. These inconsequential, strident rants seem likely to be preparation for next year’s sputtering from those on the wrong end of the realignment.

      1. True, yet here you are, still at it.

    3. Sarcastr0: Do you have any specific responses to Thomas’s specific statutory construction arguments? They seem like eminently plausible, professionally respectable arguments. Whatever the phrase “right-wing media brained stuff” might mean, I don’t quite see how it would apply here.

      1. Seven other Supreme Court justices — four of whom are right-wingers — have spoken eloquently and concisely in response to Justice Thomas’ argument, at the time Justice Thomas contributed that argument to the Supreme Court’s record.

      2. Professor Volokh, I thought Justice Thomas made a lot of sense in that he believes section 230 needs to be re-visited. The world is a much different place than it was back in 1996. Heck, some of my more liberal friends tell me the world is a much different place after 2016. 😉

        I don’t think the Congress that passed section 230 could reasonably foresee all the implications of their law. They weren’t wrong for passing 230. They simply did not have a crystal ball. BTW, that is true of SCOTUS also. Time has passed, cases have come and gone, it is time to tweak the interpretative framework of the law. That is how I interpreted what Justice Thomas was saying.

        1. Yeah, just like the Framers didn’t have a crystal ball in 1787?

          Oh, wait…

          Do you know who is in a great position to amend the CDA to keep up with the times? Congress! They are in such a good position, they just did it … in 2018! And they didn’t happen to agree with Thomas, then, did they?

          Isn’t it wonderful when Justice Thomas, alone, arrogates to himself the ability to be our council of guardians? I just wish we had a legislative branch that could do that, subject to periodic elections. Wouldn’t that be nifty?

          1. “Arrogate to himself the ability to be our council of guardians?” Who knew a single Justice issuing a statement about the Court denying certiorari held such a mighty power!

      3. The discussion around removals is pretty weak stuff. There’s only one case cited (Sikhs for Justice, Inc. v. Facebook) where any court has relied on 230(c)(1) as the basis for immunity for a removal. Both courts in the eVentures case he cites agree that you’d look to 230(c)(2) and that Google needed to show that the removal was done in good faith.

        I do agree that the district court decision in Sikhs for Justice isn’t that well reasoned, but I think that’s at least partly because neither is the case being made by the plaintiffs (from the decision: “Although Plaintiff’s theory is not entirely clear…” and later notes that SFJ did not even respond to Facebook’s argument re: publisher immunity). Judge Rao is dealing with a weak, messy case and the outcome would be the same regardless of if she looked to 230(c)(2) or probably the three other defenses that Facebook raised as well.

        So if the only example Thomas has of the “problem” of the wrong standard being applied to removals by an Internet company is Facebook removing content in India at the behest of the Indian government, I’d tend to agree that he’s jumped on the Fox News bandwagon as opposed to describing a real problem in the current way that Section 230 is being interpreted by the courts.

        1. Duh, judge Koh not Rao.

      4. Afternoon Prof.

        I’m fine with his altering editing part, but his analysis of ‘decisions to remove certain material’ seems scanty to me. loki above provided a pretty good intentionalist discussion of Congress not acting even after courts made the broad interpretation. And in support, Thomas provides 2 cases, the second of which doesn’t seem apropos other than bringing up racism for…some reason, and the first of which at best emphasizes the good faith language in the immunity.

        We’ve been over this on this blog over and over again, and the status quo stands for reasons both practical and statutory.

        Thomas’ product liability theory about output interfaces seems outta left field to me, reading common law into an area where statute has pretty decisively preempted. Lots of emotionalism about human trafficking that is very much up to Congress to address.

        1. “Lots of emotionalism about human trafficking that is very much up to Congress to address.”

          Not only up to them to address, but they already did so! (Which just makes loki13’s general point.)

  4. I expect Justice Thomas to adapt better than most conservatives to an enlarged Supreme Court. He is long accustomed to being the lonely, strident advocate for unpopular and largely doomed positions. He nearly seems to enjoy being the disaffected rogue.

    1. Why would he need to adapt after the Republican retaken House and continued Republican Senate take you up on your idea of expanding the court and Trump appoints six more conservative justices?

  5. “Deciding how to organize your newspaper, magazine, or book, and what communicative “features” to include in it (e.g., what information to include connected to photographs), is indeed the function of a “publisher,” and I think § 230 should reasonably be read as applying that to web sites and other platforms.”

    When facebook recommends certain articles, it is not acting as a publisher of “any information provided by another internet content provider”, but rather rearranging its newsstand so as to give prominence to certain articles.

    So facebook cant be vicariously liable as a publisher for the defamatory content of an article it posts—unless it had constructive notice of such content—but it can be if it otherwise arranges its site to give prominence to these articles.

    1. Are you saying Facebook can be liable for defamatory content it gives prominence to? If so this seems odd. Would a bookstore be liable for defamatory content in books it sells, if it puts the books at the front of the store, but not if it puts them at the back of the store?

      1. In some cases, FB doesn’t just “give prominence to” defamatory content, it solicits it. See their “third party fact checking” program.

        Not just anybody can submit these “fact-checks”, FB chooses them itself. This, I think, makes FB responsible for the content of the ‘fact-checks’.

  6. Best thing about Justice Thomas is that he makes the right people barking mad.

    1. This type of cranky ankle-biting is increasingly all the clingers, and the Volokh Conspiracy in particular, have left.

      Culture wars have consequences. Thank goodness.

    2. Bob from Ohio:

      Do you know what I love from pedophiles? They make all those people who are always overly protective about their children angry. Goodness, I love those pedophiles.

      1. Quite the stupid comparison. Good work.

        1. Not at all. You’ve long admitted you have no principles, and only root for the interest of your team.

          It’s refreshing to see that you don’t even care about the success of your team, and you only enjoy seeing the “other team” angry.

          So, good luck with your support for trollin’, Bob! Because, hey, you and Rapin’ Trump should get along fine.

          1. Yawn.

            I don’t know how you can go thru life so angry at everything. Seems tiring.

            1. Aw, so cute! You think I’m angry … at you? No, your support for rapists and pedophiles is just sadly unremarkable, Bob. It’s nothing more then inevitable consequence of your lifestyle and brainpower.

              1. You are mad at everyone who disagrees with you. Rude and condescending to people here. Spitting angry at a “statement respecting the denial of certiorari” which is the legal equivilent of his next lunch order.

                You disappeared after the last election. A good plan. You should do it again.

  7. Section 230 strikes me as rather poorly drafted, and overall a good example of why a few hundred Congressional buffoons shouldn’t be so quick to try and supplant the natural development of common law, or the regulatory laboratories of the states, with a federal statutory scheme.

    Centuries ago, I assume it was well understood that a person who owned a building and printing press wasn’t the “publisher” or “speaker” just because they owned it, if they were renting it out to others who were actually doing the operating and the writing and the editing. So the basic principles are nothing new.

    1. And yet the obvious conclusion about the distributor/publisher distinction was this was the opposite direction to where the courts were heading in 1996, so it seems like the “buffoons” did a pretty good job overall.

      1. One ruling that you disagree with is not equal to the “direction to where courts were heading” and even less indicative of where case law and state laws would end up.

        Granted, though, Thomas’ excellent analysis does paint 230 in a more positive and sensible light.

  8. Immunity will grow an enterprise. Liability will shrink it. Liability destroyed manufacturing without public consent, and unjustly enriched the lawyer profession. Idiot, know nothing lawyers get to set industrial policy in highly technical areas. This is the biggest
    criminal enterprise. They fully infiltrated the three branches of government. The lawyer profession must be crushed to save our nation.

    Immunity is appropriate for new, immature industries. The internet is no longer new nor immature. It totally dominates the economy now. Enough. End all its immunities.

    Billions of crimes are committed on the platforms of all tech billionaires. These platforms should be seized in civil forfeiture. These criminal instruments should then be auctioned off like the Ferrari of a drug dealer. To deter.

  9. Almost completely agree that Congress, not the courts, must take responsibility for malign consequences of Section 230. My one reservation is that the courts might have made a saving federalism argument, on behalf of state libel laws. Is there any precedent for such a sweeping federal takeover of an entire system of varied state laws, which in the aggregate seemed to be doing a pretty good job?

    1. Is there precedent for sweeping federal takeovers of state liability regimes? Yes, of course. Many federal regulatory schemes preempt state liability. See, e.g., Riegel v. Medtronic.

  10. As Justice Thomas noted in his opinion, the Supreme Court has never interpreted the statute before.

    Stare decisus is about the Suoreme Court’s own prior decisions, not those of inferior courts. There are pragmatic reasons in favor of not disturbing a consensus among lower courts that has stood for aome time. But the Supreme Court is in no way bound by that consensus.

    I agree with Justice Thomas that the immunity from liability granted by Congress is not as extensive as courts have construed it, particularly where a service provider makes active general content decisions rather than simply acting as a pass-through distributor.

    1. Stare decisus is about the Suoreme Court’s own prior decisions, not those of inferior courts. There are pragmatic reasons in favor of not disturbing a consensus among lower courts that has stood for aome time. But the Supreme Court is in no way bound by that consensus.

      The Supreme Court is in no way bound by its own prior decisions either. Stare decisis for SCOTUS is always about prudence, not about inexorable command. And prudence suggests that they shouldn’t overturn a consensus of lower court statutory decisions without good reason beyond a mere “We disagree.”

    2. I agree with Justice Thomas that the immunity from liability granted by Congress is not as extensive as courts have construed it, particularly where a service provider makes active general content decisions rather than simply acting as a pass-through distributor.

      The entire point of enacting § 230 was to overturn Stratton Oakmont to enable them to make active general content decisions without liability. Cubby already said that there was no liability (at least not upfront) if they were merely acting as a pass-through distributor. Obviously they wanted to codify that, but they wanted to go beyond it to overturning the other case.

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