from the really-now? dept
I’m not quite sure what has gotten into Supreme Court Justice Clarence Thomas lately, but he’s been on quite a roll in terms of deciding he wants to toss out all sorts of well-settled precedents (including, in at least one case, his very own precedent). What’s alarming, though, is that he seems particularly focused on hacking away at free speech and the 1st Amendment. Back in 2016, when people were discussing whether or Donald Trump could “open up” libel laws, lawyer Ken White noted that there was no real appetite among judges to attack free speech.
However, it certainly looks like Thomas has that appetite, and is trying to inspire others.
It started a year and a half ago, when he (basically out of nowhere) suggested that NYT v. Sullivan was no longer good law. That’s the case that set up the well-established and well-recognized standards for defamation of a public figure. It’s a key 1st Amendment case, because it sets the bar quite high in an effort to protect free speech about public figures — saying that it can only be defamation if the speaker saying it knows that the statement is false, or says it with “reckless disregard” for whether or not it is false. While this makes it difficult for a public figure to win a defamation lawsuit, that’s the point. If you believe in the 1st Amendment, then that standard needs to be quite high.
Today, Thomas decided to also suggest he believes that Section 230’s 1st Amendment protecting elements have been interpreted too broadly, and suggests that he’d like to overturn nearly 25 years of “settled” law about how broadly 230 should be applied. He did this as part of the Court rejecting the petition in the Malwarebytes case. We’ll have more on this case later, but as we’ve written in the past, it involves a troubling interpretation that says if moderation is used in a way deemed anti-competitive, 230 does not protect that moderation.
Thomas agrees with the decision to reject hearing that case, but then decides to signal his desire to basically undermine the original Section 230 ruling in Zeran v. AOL that set the bar, by noting that Section 230 provided a very broad immunity. That ruling was in the 4th Circuit, but basically every other appeals court that has ruled on 230 has adopted the Zeran standard. There is no circuit split, and the the Supreme Court has never directly examined the issue. Thomas suggests they should.
To be clear, while there are dozens (or perhaps more than that) of kooky and crazy interpretations out there of Section 230, Thomas’s critique of the interpretation is much more measured. That doesn’t mean that it’s correct. Indeed, I think it’s wrong on multiple accounts. But it’s not wrong in the completely nonsense sort of ways that so much 230 analysis is these days. First, he discusses what 230 is and how it came about, including a discussion about historical distributor liability (much of which we discussed in our recent Greenhouse post about online liability before 230).
In short, pre-230, there was publisher liability and distributor liability — which were two separate concepts. Under distributor liability, you could be held liable if you had knowledge of illegal products that you were distributing. The Zeran ruling more or less said that the concept of distributor liability is gone on the internet. It ruled that Section 230 created a broad immunity for internet distributors. For what it’s worth, the authors of Section 230, Chris Cox and Ron Wyden, have long said that this was the correct interpretation of the law they wrote.
The key argument that Thomas makes is that Section 230 was not designed to completely eliminate the concept of “distributor liability.” He argues that a strict reading of 230 would retain a separate form of distributor liability, and that Zeran went too far:
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. Zeran v. America Online, Inc., 129 F. 3d 327, 331?334 (CA4 1997). 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.? Id., at 331, 334. And subsequent decisions, citing Zeran, 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. One source respectively refers to them as ?primary publishers? and ?secondary publishersor disseminators,? explaining that distributors can be ?charged with publication.?
But he disagrees with this interpretation and gives three reasons to question the prevailing understanding of 230:
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. 110 Stat. 133?134 (codified at 47 U. S. C. §223(d)). This section is enforceable by civil remedy. 47 U. S. C. §207. It is odd to hold, as courts have, that Congress implicitly eliminated distributor liability in the very Act in which Congress explicitly imposed it.
This is… an ahistorical reading of the situation. As Chris Cox has explained in great detail, 230 was never meant to be understood in connection with the rest of the Communications Decency Act (all of which the Supreme Court tossed out as unconstitutional in Reno v. ACLU). 230 was meant as an alternative approach to the clearly unconstitutional approach that Senator Exon wanted with the CDA, which was a plan to try to ban all pornographic and offensive material on the internet. Cox and Wyden realized that approach would not work and would be problematic, and presented 230 as an alternative. Through some maneuvering during the conference to align the House and Senate bills, the two approaches got mashed together.
But — and this is kind of important — the Exon approach of creating a ridiculous strict form of distributor liability was thrown out as unconstitutional, leaving just the Cox/Wyden approach which says there is no distributor liability. Thomas ignores this aspect of the history, and acts as if the intention all along was that 230 was meant to somehow work together with the rest of the CDA. That was not the intention.
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, e.g., FTC v. Accusearch Inc., 570 F. 3d 1187, 1195 (CA10 2009), one might expect Congress to use the same terms Stratton Oakmont used.
Again, this is a very weird statement. It suggests that 230 wasn’t designed to overturn Stratton Oakmont. But here we don’t even need to ask the authors of 230 to explain why that’s wrong, because the Congressional Report regarding the law said explicitly that it was written to overturn Stratton Oakmont. For Thomas to suggest this was not the case is just… odd? From the Congressional Report:
This section provides “Good Samaritan” protections from
civil liability for providers or users of an interactive
computer service for actions to restrict or to enable
restriction of access to objectionable online material. One of
the specific purposes of this section is to overrule Stratton-
Oakmont v. Prodigy and any other similar decisions which have
treated such providers and users as publishers or speakers of
content that is not their own because they have restricted
access to objectionable material. The conferees believe that
such decisions create serious obstacles to the important
federal policy of empowering parents to determine the content
of communications their children receive through interactive
I recognize that Justices like Thomas like to ignore the Congressional record in reading laws, but it does seem weird for him to suggest that it wasn’t meant to overturn Stratton Oakmont when the record literally says the exact opposite.
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.
This is the one point that is actually the strongest argument from Thomas, though it’s still not good. Most people recognize that the drafting differences between (c)(1) and (c)(2) of Section 230 are awkward in that they are not parallel. But Thomas tries to read way too much into that awkwardness, and ignores (again) what the Congressional record says, what the authors of the statute say, and how the various courts have interpreted the law.
Separately, this seems to ignore the intent of (c)(2), which is more targeted at tool makers/filter creators than the companies that host content. As law professor Derek Bambauer highlights in a useful thread, (c)(1) was to protect websites and (c)(2) was designed to protect tool makers.
For what it’s worth, as Neil Chilson notes, while Thomas is busy trying to strictly interpret the law based on what he sees in the text, he inadvertently slips in his own language into the statute that is not there. Specifically, Thomas claims that 230 was only meant to apply to companies that “unknowingly” leave up illegal third-party content. But “unknowingly” is nowhere in the statute. So it’s a bit odd for him to insist that he can only interpret strictly based on what’s in the law, when he’s also out there adding his own words to the statute.
Thomas then suggests that the courts could take a much broader reading of (f)(3) of the law (which is a key element of the NTIA’s petition to the FCC), which says that a platform can still be liable for content that it “in whole or in part” helps in the “creation or development.” He highlights two cases where many believe that language was stretched (Batzel and Dirty World). In both of those cases, someone deliberately chose to pass along potentially defamatory content (one to a mailing list and the other to a blog) with minimal commentary. In both cases, 230 was deemed to protect it.
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.? E.g., Zeran, 129 F. 3d, at 330 (emphasis added); cf. id., at 332 (stating also that §230(c)(1) protects the decision to ?edit?). Only later did courts wrestle with the language in ?230(f )(3) suggesting providers areliable 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. E.g., Batzel v. Smith, 333 F. 3d 1018, 1031, and n. 18 (CA9 2003) (?[A] central purpose of the Act was to protect from liability service providers and users who take some affirmative steps to edit the material posted?).
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, 755 F. 3d 398, 403, 410, 416 (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, isdubious.
There are, in fact, even some supporters of Section 230 who argue that Batzel and Dirty World were perhaps decided incorrectly, though I disagree. The key issue is that in neither Batzel nor Dirty World did the defendants in those cases create or develop the allegedly defamatory content. They did add commentary — and would and should be liable if that commentary itself were defamatory. But in passing along the content, they took no part in the creation or development of it. Curation is different that creation or development.
And, indeed, this is why the Roommates case (which Thomas also mentions in passing) turns out to be important. While I initially disagreed with the ruling, in retrospect, I think it was exactly right. In Roommates, the company did not have 230 protections specifically on the content it developed (in that case, a pull down menu about race, that it was argued could violate fair housing laws). The pull down itself was created by the company, and thus it was liable for it. That standard makes a lot of sense, even if Thomas brushes it off. With regards to the Batzel or Dirty World cases, and the interpretation regarding “editing,” the story would be different if the editing was what introduced the allegedly defamatory content. But if that content was from the 3rd party, 230 protects the service provider or user.
From there, Thomas argues that the broad interpretation of (c)(1) has more or less obliterated (c)(2):
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).
Notice, again, that Thomas inserts an “unknowingly” where it does not exist.
But by construing §230(c)(1) to protect any decision to edit or remove content, Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1105 (CA9 2009), courts have curtailed the limits Congress placed on decisions to remove content, see e-ventures Worldwide, LLC v. Google, Inc., 2017 WL 2210029, *3 (MD Fla., Feb. 8, 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., 697 Fed. Appx. 526 (CA9 2017), aff ?g144 F. Supp. 3d 1088, 1094 (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)).
Except that courts have regularly declined to read the law quite as broadly as Thomas suggests they have here.
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, 817 F. 3d 12, 16?21 (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. Id., at 19; see also M. A. v. Village Voice Media Holdings, LLC, 809
F. Supp. 2d 1041, 1048 (ED Mo. 2011).
This somewhat salacious interpretation of what happened is also not entirely accurate. Under a Roommates standard, if the actions of Backpage were actually directly a part of the development of illegal content, then it could have been found liable. The issue here is that it was a lot more complicated, and the moderation decisions had non-nefarious, reasonable interpretations that Thomas has chosen to ignore. And, of course, it also leaves out that Backpage was eventually taken down and its execs are facing (somewhat complicated) criminal charges.
Consider also a recent decision granting full immunity to a company for recommending content by terrorists. Force
v. Facebook, Inc., 934 F. 3d 53, 65 (CA2 2019), cert. denied,590 U. S. ?? (2020). 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.? 934 F. 3d, at 64. It then granted immunity, reasoning that recommending content ?is an essential result of publishing.? Id., at 66. 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.?? Id., at 76? 77 (Katzmann, C. J., concurring in part and dissenting inpart) (quoting §230(c)(1)).
Remember, the Force case involves the family member of a person killed by terrorists who blamed Facebook, despite there being no connection at all between Facebook and the terrorists who killed the family member. It was just “this person was killed by terrorists” and “some terrorists have at times used Facebook.” Section 230 was designed for exactly these kinds of cases.
More troubling, of course, is that Thomas ignores the interplay of the 1st Amendment and Section 230 in cases like this. Facebook’s recommendation algorithm is still protected under the 1st Amendment. Section 230 acts as a procedural shield to help get bad 1st Amendment cases dismissed early.
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, 765 Fed. Appx. 586, 591 (CA2 2019), cert. denied, 589 U. S. ?? (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., 440 F. Supp. 3d 1103, 1107, 1113 (CD Cal. 2020).
Again, Thomas is selectively choosing these examples. He ignores the Doe v. Internet Brands case that went the other way, suggesting that courts have not read the law quite as broadly as he insists they have. It also ignores the facts of the two cases he describes, which are not at all how he’s presented them (we’ve explained how both the Herrick case and the Lemmon case have been mis-portrayed, and their facts show why the 230 rulings were proper).
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. Accusearch, 570
F. 3d, at 1204 (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,? Force, 934 F. 3d, at 64, give defendants immunity.
This is an odd statement for Thomas to be making, as the supposedly conservative wing of the Supreme Court, of which Thomas is a key member, has been the one that has pulled the court further and further into arguing that conduct can be expression and thus protected under the 1st Amendment. Yet here, he’s now suddenly complaining that the courts have been ruling similarly with regards to 230. Indeed, this is so odd a position that I’d guess he might find more support from the supposedly “left wing” of the Court for this particular argument.
None of this means that Section 230 will be picked apart by the Supreme Court. Thomas is just one Justice, and it’s unclear if any of the others agree with him. And, to date, the court has shown little interest exploring these issues. You need more than one Justice on board to do very much. Still, this is a concerning argument, and again suggests that Thomas is, perhaps, one of the least free-expression-supportive Justices on the Supreme Court.
Filed Under: cda 230, clarence thomas, free speech, intermediary liability, section 230, supreme court