Clarence Thomas Is Doing That Thing Again Where He Muses Ignorantly About Section 230 For No Damn Reason

Legal Issues

from the the-supreme-court-docket-is-not-for-blogging dept

Supreme Court Justice Clarence Thomas is at it again. Over the last few years, he’s taken to using the Supreme Court’s denial of cert in various cases as his own personal blog, to randomly muse on legal issues without any briefing. He’s done it to attack long standing defamation/1st Amendment precedent, and has used it to attack Section 230, which he’s done multiple times. Each time he’s done this, it’s with a weird and nonsensical personal interpretation of Section 230, without any briefing at all on the underlying issues. He seems to have taken a very weird misinterpretation of Section 230 — one supported by no courts and no authors of Section 230 — and insisted it must be right based on… his own personal feelings?

He’s now done it again, sounding off on Section 230 while denying cert regarding a completely messed up Texas Supreme Court ruling about Section 230. In that case, you may recall, Texas’ Supreme Court, mistakenly claims that FOSTA didn’t just carve out federal sex trafficking laws from Section 230 (something it explicitly does), but instead the Texas Supreme Court ignores what’s directly in the text of FOSTA and argues (incorrectly) that FOSTA creates all sorts of new causes of action based on state laws. This is, fundamentally, wrong. It’s not just a different interpretation, it’s literally ignoring what FOSTA says and the entire debate around FOSTA in which this point was debated repeatedly.

Anyway, Facebook petitioned the Supreme Court to tell the Texas Supreme Court to maybe actually read the law next time, but the Supreme Court chose not to (not a surprise, since it denies most cert petitions — and in this case because the case is not a final judgment, the Supreme Court felt that it was outside its jurisdiction). That will, at the very least, create a huge mess in Texas for other FOSTA cases that are being brought by an ambulance chasing Texas lawyer who has carved out a niche practice suing internet companies for claimed FOSTA violations, but not much can be done about that in the meantime.

But, since this involves Section 230, Thomas decided to blog again, wading into this topic he doesn’t understand, without any detailed briefing, and insisting on things that are obviously untrue. The key citation for his musings… is his own earlier, equally unbriefed, musings on a previous denial of cert.

This decision exemplifies how courts have interpreted §230 “to confer sweeping immunity on some of the largest companies in the world,” Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 592 U. S. , (2020) (slip op., at 1) (statement of THOMAS, J., respecting denial of certiorari), particularly by employing a “capacious conception of what it means to treat a website operator as [a] publisher or speaker,” id., at _ (slip op., at 8) (internal quotation marks omitted). 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. Fourth Amended Pet. in No. 2018–69816 (Dist. Ct., Harris Cty., Tex., Feb. 10, 2020), pp. 20, 22, 23; see also Reply Brief 3, n. 1, 4, n. 2 (listing recent disclosures and investigations supporting these allegations). It is hard to see why the protection §230(c)(1) grants publishers against being held strictly liable for third parties’ content should protect Facebook from liability for its own “acts and omissions.” Fourth Amended Pet., at 21.

Except… all of that is confusing, well, everything. Section 230 creates immunities for the intermediary because if it didn’t, it would create the moderator’s dilemma issue we’ve talked about many times in the past, including an unwillingness of many companies to actually search for potentially law violating content, out of a fear of then having “knowledge.” It also will drive many companies away from hosting 3rd party content out of a fear of liability. So Section 230 puts the liability where it belongs: on the party violating the law.

The final line of this paragraph is correct, but weird. Facebook is not protected from liability for its own acts. But this lawsuit isn’t about its own acts. The lawsuit is about users using the site in an effort to traffic people. The massive stretch to make it about Facebook’s “own acts and omissions” is to claim that Facebook had a duty to mitigate, and therefore in not dong that, it’s an “omission” by Facebook, and then you can hold Facebook responsible. Of course, under such a reading, Section 230 is completely repealed. Because then anyone will just claim for anything that the website had a “duty to mitigate” whatever bad thing someone said on a site, and 230 no longer protects.

Thomas continues along this nonsensical line of thinking:

At the very least, before we close the door on such serious charges, “we should be certain that is what the law demands.” Malwarebytes, 592 U. S., at _ (slip op., at 10). As I have explained, the arguments in favor of broad immunity under §230 rest largely on “policy and purpose,” not on the statute’s plain text. Id., at _ (slip op., at 4). Here, the Texas Supreme Court recognized that “[t]he United States Supreme Court—or better yet, Congress—may soon resolve the burgeoning debate about whether the federal courts have thus far correctly interpreted section 230.” 625 S. W. 3d, at 84. Assuming Congress does not step in to clarify §230’s scope, we should do so in an appropriate case.

Except, that’s wrong. The broad immunity of Section 230 do not “rest largely on ‘policy and purpose’.” It rests on a direct reading of what the law actually says (something the Texas Supreme Court ignored, and which Thomas now ignores).

All of this also ignores the simple fact — that we keep trying to drive home — that even absent Section 230 protections, most of these cases still have no underlying cause of action. Thomas cites his own musings in the denial of cert on Malwarebytes, but (of course) leaves out that after going through the courts for years over this, the case still failed. The same is true of the eventual ruling in the famed Roommates.com case, where the courts said Section 230 didn’t protect Roommates, but Roommates still won the case in the end.

That’s because, Section 230’s main benefit is getting bad cases kicked out early. So even without Section 230, there’s a high likelihood that Facebook would win its case in Texas, because cases like Smith v. California mean that, without direct knowledge, Facebook cannot be held liable. But, Thomas and the various groups of people who hate Section 230 tend to ignore all of that.

Thomas blogging randomly in the denial of cert has no real direct impact for the time being, but it will lead to this nonsense being cited repeatedly in other cases, as if it has some meaning. And it only increases the likelihood that eventually a serious Section 230 case reaches the Supreme Court — with it being telegraphed pretty broadly how Thomas will rule (even after he’s actually briefed on all the points he’s getting wrong). About the only good thing here is that it appears that, so far, Thomas hasn’t infected his blinkered view of 230 on any other Justice to the point that they’re willing to sign off on this kind of nonsense. Yet.

Filed Under: 1st amendment, clarence thomas, distributor liability, intermediary liability, knowledge, scotus, section 230, texas
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