Justice Thomas Really, REALLY Wants Section 230 Repealed (Even If He Has to Do It Himself)
The Supreme Court denied certiorari in Doe v. Facebook, a FOSTA case. The Texas Supreme Court held that FOSTA excluded some claims from Section 230 (disregarding the statutory language Congress adopted), while other claims remain preempted by Section 230. The case will now go back on remand to deal with the FOSTA-excluded claims.
Along with the cert denial, Justice Thomas issued a “statement” bashing Section 230. This is his third solo-authored anti-Section 230 statement; the prior rants came in the Knight First Amendment v. Trump (2021) and Malwarebytes v. Enigma (2020) cases. Those earlier two statements were surely aided by his then-law clerk Josh Divine. a Hawley protégé. I had hoped that maybe Justice Thomas’ anti-230 statements would fade away following Divine’s departure. No such luck.
Justice Thomas writes: “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.'” To be clear, Section 230 largely does not address “strict liability” for Internet services because that’s governed by the First Amendment, which typically makes strict liability for publishing or distributing third-party content unconstitutional. See, e.g., Smith v. California.
Also, Facebook’s “acts and omissions” at issue here solely involve the publication of third-party content, which is why Section 230 extends to them. As I’ve explained many times, treating publication decisions as “conduct” and not “speech” would make Section 230 a nullity. (Which, of course, is Justice Thomas’ objective…)
Justice Thomas also writes: “Assuming Congress does not step in to clarify §230’s scope, we should do so in an appropriate case.” Is that an implied threat to Congress? Whatever happened to judicial deference to legislatures? Courts fixing a statute’s “scope” when a legislature doesn’t is called judicial activism/legislating from the bench.
On the plus side, Justice Thomas has been utterly transparent about how he will rule on Section 230 when he gets his chance. He’s now said three times he’s ready to tear up Section 230–apparently regardless of the merits of a defendant’s arguments. That kind of immutable bias going into a case should prompt recusal, but Justice Thomas also has relaxed views about recusal.
More commentary from Mike Masnick at Techdirt.