Advice to Lawyers: Don't Cite a One-Justice Statement as the View of "the Supreme Court"

"Plaintiff failed to provide important context in her motion, namely that the Supreme Court denied certiorari in Malwarebytes, and that the only certiorari-stage explanatory writing came from Justice Thomas, who agreed with the decision to deny certiorari."

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From the Motion for Leave to File a Motion for Reconsideration in J.B. v. G6 Hospitality, LLC:

First, the Supreme Court recently confirmed that the originally intended scope of Section 230 is "a far cry from what has prevailed in court," and implored lower courts to stop "reading extra immunity into statutes where it does not belong." Malwarebytes, Inc. v. Enigma Software Group USA, LLC, No. 19-1284, 2020 WL 6037214, at *2 (Oct. 13, 2020). The Malwarebytes guidance is particularly applicable here, because Justice Thomas specifically noted a case that is materially similar to this one as a problematic extension of Section 230 immunity. Id. at *4….

Very recent authority from the Supreme Court supports the conclusion that Section 230 immunity does not apply to Craigslist here. Recent lower court authority specifically regarding Craigslist likewise confirms that, were the Court to accept full briefing and consider Plaintiff's amended allegations, it should determine that immunity is inappropriate here.

In Malwarebytes, issued less than one month ago, Justice Thomas cautioned lower courts to stop relying on Section 230 to grant website companies broad immunity from liability for unlawful conduct occurring on their platforms. Justice Thomas explained that Section 230 was enacted "against specific background legal principles," including laws distinguishing between "publishers or speakers (like newspapers) and distributors (like newsstands and libraries)." 2020 WL 6037214, at *1. Specifically, Section 230 was intended to clarify "that if a company unknowingly leaves up illegal third-party content, it is protected from publisher liability by §230(c)(1); and if it takes down certain third-party content in good faith, it is protected by §230(c)(2)(A)." Id. at *2….

The response by the District Court (Judge Haywood S. Gilliam, Jr.):

Plaintiff seemingly argues that reconsideration is warranted on the second basis because subsequent Supreme Court authority "supports the conclusion that Section 230 immunity does not apply to Craigslist." Mot. at 4. The Court rejects this argument, as the authority cited does not qualify as a change in or clarification of controlling law. Plaintiff contends that "the Supreme Court recently confirmed that the originally intended scope of Section 230 is 'a far cry from what has prevailed in court,' and implored lower courts to stop 'reading extra immunity into statutes where it does not belong.' " Mot. at 1 (citing Malwarebytes, Inc. v. Enigma Software Group USA, LLC, No. 19-1284, 2020 WL 6037214, at *2 (Oct. 13, 2020)). Plaintiff effectively acknowledges that her argument falls short under Local Rule 7-9(b)(2). See Mot. at 6 ("To the extent this Court finds Justice Thomas's warning instructive, then, it would be difficult to argue that it does not apply to this case.")

More importantly, Plaintiff failed to provide important context in her motion, namely that the Supreme Court denied certiorari in Malwarebytes, and that the only certiorari-stage explanatory writing came from Justice Thomas, who agreed with the decision to deny certiorari. See 2020 WL 6037214, at *1. Justice Thomas wrote separately to "explain why, in an appropriate case, [the Supreme Court] should consider whether the text of [47 U.S.C. § 230] aligns with the current state of immunity enjoyed by Internet platforms." Id. Justice Thomas expressly indicated that the Court "need not decide [] the correct interpretation of" the Act, and simply stated his opinion that it should do so in the appropriate case. Id. at *5. This is far from showing a change in or clarification of controlling law meriting reconsideration.

It's perfectly fine to cite a one-Justice opinion; you just need to acknowledge that, and not say that the decision involves "the Supreme Court recently confirm[ing]" what that one-Justice opinion states. (Nor do the references to Justice Thomas in the motion make the one-Justice nature of the opinion clear; "Justice cautioned," following a statement about what "the Supreme Court" did, is generally understood to suggest that Justice wrote the opinion of the Court.)