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

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 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.

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

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This comment has been deemed insightful by the community.
That One Guy (profile) says:

If you do not know the law you should not be ruling on it

It’s more than a little disturbing and worrisome that no less that a Supreme Court Judge has such a hate-on for a particular law that they would not only take the opportunity multiple times to waste time and paper talking about how they’d really love to see it gutted, but do so in a way that makes clear they have no bloody clue what they’re talking about and their enemy is a fictional version of the real law.

jojo_36 (profile) says:

Clarence Thomas…

Thurgood Marshall is spinning so hard that he created a whole new alternative power resource that future American companies would switch to, but the government is sued by shady coal barons, and that case is brought to the Supreme Court where Clarence and the Conservatives shuts down any way that alternative power source could be used, so Thurgood is just spinning in his grave.

This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

If a doctor was this detached from reality & was railing against blood transfusions…. we’d suspend his license. He would be putting people in harms way because he is ignoring reality.

When others are this detached from reality we give them jobs for life & keep reelecting them.

It is clear that Justice Thomas is unable to read laws & his interpretations are dangerously removed from reality. Why is he still in a position to decide how & what the law says in this nation?

There is plenty of evidence in his own blog that he does not understand & refuses to accept he might have been wrong at any point. And this man is allowed to make rulings that can contort law to what he thinks it says rather than what it says.

If others in the government become mentally infirm or disabled there is a system & a plan… but in this case we just keep letting the mad man say stupid things, ignore the law, and scream at the clouds based on what he imagines a law says??

He wanted to repeal gay marriage because it upset people, but somehow missed how many people were pissed off after Loving v. Virginia… shouldn’t both have been repealed under his thinking?

This is the same sort of crazy thinking Cocaine Mitch keeps whining about that states should make voting laws without the government being involved… I guess we are supposed to ignore the history of many states stealing that right from citizens so that the few could maintain power of the many… perhaps if they weren’t trying to get back to the good ole days of keeping darkies from voting there would be no concern but there are organized efforts to stop citizens from voting because the Republicans themselves admit if those people voted they would never hold office again.

Thad (profile) says:

Re: Re: Re:

I’m pretty sure TAC knows the legal reason Thomas is still on the court. The actual better question is why are no removal methods even being discussed when he has become so obviously unsuited to the job.

In what way is that an “actual better question” if you know the legal reasons he’s still on the court?

(Obviously I’m not suggesting the third option be considered…)

Then what are you suggesting? I’m going to assume you don’t seriously think there are 17 Republicans in the Senate who are going to vote to remove him.

PaulT (profile) says:

Re: Re: Re:2

“I’m going to assume you don’t seriously think there are 17 Republicans in the Senate who are going to vote to remove him.”

Yeah, and even if that did work, the trend in recent years is for Republicans to block any new appointment until they have a mandate to install their own cultist. If Thomas dies or retires, it could happen at a time when they can’t do that, while if you somehow force him out, they’ll block anything they can out of spite and use it to program their cultists to use it as a reason to give them that power again.

That Anonymous Coward (profile) says:

Re: Re: Re:2

Because like those hard question families face every year in having to tell grammy & grandpa they can’t drive anymore, they can’t bother to make it a law to make it easier.

Because old people vote & whats a few wrong way freeway deaths vs alienating a buncha voters.

There reaches a point where getting older takes a toll on people, there isn’t a single line one can set that covers everyone, but my god look at his rants. He’s lost the ability to comprehend legal documents, restates them incorrectly, and rails against things he IMAGINES are happening.

The framers lifespan wasn’t anywhere near ours today, so they never considered that those elected or appointed might become unhinged in their old age.
That or they were dumb enough to believe that they would put the nation before their own ego).

We shouldn’t have people who can’t understand or comprehend things making decision about those things.
Judge Allsup (sp) learned to CODE so he could understand the case before him vs. The internet is a series of tubes.

Perhaps we should only elect people who can make digital devices stop blinking 12:00 without assistance.

Thad (profile) says:

Re: Re: Re:3

Because like those hard question families face every year in having to tell grammy & grandpa they can’t drive anymore, they can’t bother to make it a law to make it easier.

Well, okay, two things.

First: Thomas isn’t senile; GTFO with that ageist horseshit. He’s a dangerous ideologue and he always has been. It’s not his age that’s the problem, it’s his extremism.

Second: Regarding “they can’t bother to make it a law” — you’re aware that the “law” you’re talking about would in fact be a constitutional amendment, yes?

I support an amendment eliminating lifetime Supreme Court terms (I’d probably say an 18-year term is good; that way a new justice would get rotated in every 2 years). But you’re talking about it like it’s something that would be trivial to pass, and it really, really isn’t. We’ve got a Senate that won’t even pass voting rights on a simple-majority vote, and you think they should be pushing constitutional amendments that definitely won’t pass? Seems to me if they were, you’d be complaining that they’re wasting time on something that will never pass instead of focusing on things that are actually possible.

ECA says:

Re: Really need School records published

But the problem seems that its the time frame of when you could PAY for grades.
Wow, lets add to your campass.
Need anything updated? Improved? A Whole New Building? How about a Raft ride thru the campus?

Then you ask, WHY in hell are we paying for Education? Because THEN the rich can PAY for grades.
When it was FREE, there was little chance to Pay off someone to get better grades. NOW you pay off the WHOLE school.

This comment has been deemed insightful by the community.
Cattress (profile) says:


I don’t think the problem is that he he has become incompetent because of age or physical condition affecting his mental state. The problem is that his wife has barely ever had a grip on reality, and she has compromised his ability to rule impartially. Ginny Thomas is part of the Trump machine, and they are out for blood from social media giants for booting Trump off. In fact, I would argue that this particular instance of bitching about those evil social media giants is well calculated. SCOTUS denied a very sympathetic case, where facts are less relevant than emotions. Only monsters would let FB get away with profiting off of sex trafficking a minor, facts be damned right? And since some other know nothing with tax dollars to blow in Wisconsin is talking about decertifying 😂 2020 due to in part Zuckerberg get out the vote spending, it’s not hard to see the connection.
I don’t think the framers of the Constitution foresaw such a polarized congress that the relief valves they built in couldn’t handle.

PaulT (profile) says:


I think the reason why this is tolerated is because if you set term limits then there’s more incentive to pass bad judgements in the outgoing period when there’s no chance of meaningful personal consequences. This could be a disaster if you have a couple of similarly wrong-headed judges making decisions in this way on their way out, whereas at least with lifetime appointments there’s no expectation of when the term actually ends.

“Cocaine Mitch”

I wish people would stop calling him this. It was his wife’s boat that was caught with the drugs and it makes him sound more dynamic and interesting than he actually is.

I would prefer it if people stuck with the “Moscow Mitch” moniker and looked seriously into if there’s any reason why he consistently blocks the US government from doing anything meaningful for his people when a Democrat is in charge, outside of moronic team sports thinking.

That Anonymous Coward (profile) says:

Re: Re:

Yeah turtle man is to laid back to be a coke head.

“any reason why he consistently blocks the US government from doing anything meaningful for his people when a Democrat is in charge”

The actual answer is easy.
To keep the base supporting him.
Oh these evil taxocrats are causing you to suffer like this as they just pour federal funds into NYC!!
(of course TurtleTopia gets way more tax dollars than they put in but they won’t believe that.)

Uninformed, uninterested voters who just want to be told who is at fault for their troubles, and lets blame big democratic government overstepping into our lives.
People thought the tea partiers riding along in their medicare/medicaid hoverrounds to storm the capitol with ‘No Socialism’ signs was cute… its fucking scary.
They are so detached from the world, that they are willing to slit their own throats just to make sure no one else might get something.
The are the ultimate pinnacle of zero-sum politics, either I win or I will tear it all down.

It is with sadness that I’ve not seen a reporter do something truly important as the convoy pretends they matter… ask them their thoughts on abortion.
They are screaming how mandates to get the vaccine are violating their rights, how do they balance that with a mandate telling women they have to carry a baby to term?

Doublethink is whole heartedly embraced in this nation, and its not just a 1 side thing (thou some of the thoughts on the right are ZOMG out there).

I don’t care if this bill not passing means the dam will fail & destroy my home, I just need to make sure we don’t give any money to things democrats might want.

I don’t want big government, but government needs to force FB to let me post my rants about them damn darkies!

I don’t want poor people to be lifted out of poverty, because then I have no one to look down on and blame for my I can’t get ahead in life.

I do not want to improve things overall, I just want to make sure only I get help and if I can’t you’re all coming down with me.

Thad (profile) says:

Re: Re: Re:

Uninformed, uninterested voters

Ironically, you’re demonstrating your own susceptibility to the Republicans’ favorite trick right here.

Republicans love accusing anyone who’s poor, homeless, unemployed, or sick of being a victim of their own laziness. It’s the perfect scam: denigrate people who need help as being deficient in some way. That way it’s their fault, and the government doesn’t have any obligation to help them.

That’s what you’re doing right now, with voters. Yes, Mitch keeps getting reelected because voters are uninformed and uninterested. Let’s just say that, and not look at the staggering voter disenfranchisement in Kentucky.

Anonymous Coward says:

Alas, how far originalism has fallen!

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.

Assuming Congress does not step in to clarify §230’s scope, we should do so in an appropriate case.

Wouldn’t it be nice if the late Justice Scalia were to visit from the dead to tell his former colleague how wrong he is? /sarcasm

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