Justice Thomas Hates on Section 230. Again.–Doe v. Snap

I previously described this case:

A high school teacher allegedly used Snapchat to groom a sophomore student for a sexual relationship. (Atypically, the teacher was female and the victim was male, but the genders are irrelevant to this incident).

The teacher was sentenced to ten years in jail, so the legal system has already held the wrongdoer accountable. Nevertheless, the plaintiff has pursued additional defendants, including the school district (that lawsuit failed) and Snap.

We should be precise about Snap’s role in this tragedy. The teacher and student exchanged private messages on Snap. Snap typically is not legally entitled to read or monitor the contents of those messages. Thus, any case predicated on the message contents runs squarely into Snap’s limitations to know those contents. To get around this, the plaintiff said that Snap should have found a way to keep the teacher and student from connecting on Snap. But these users already knew each other offline; it’s not like some stranger-to-stranger connection. Further, Snap can keep these individuals from connecting on its network only if it engages in invasive user authentication, like age authentication (to segregate minors from adults). However, the First Amendment has said for decades that services cannot be legally compelled to do age authentication online. The plaintiff also claimed Snapchat’s “ephemeral” message functionality is a flawed design, but the Constitution doesn’t permit legislatures to force messaging services to maintain private messages indefinitely. Indeed, Snapchat’s ephemerality enhances socially important privacy considerations. In other words, this case doesn’t succeed however it’s framed: either it’s based on message contents Snap can’t read, or it’s based on site design choices that aren’t subject to review due to the Constitution.

Thus, courts could resolve this case without ever mentioning Section 230. However, the allegations also run afoul of Section 230. The plaintiff’s claim, at its core, is predicated on the teacher’s communications to the students. No teacher messages to students, no case. The plaintiff claimed the case wasn’t about the teacher’s messages but was instead about other derelictions on Snap’s part, but that reframing wasn’t persuasive to most judges reviewing this case. The plaintiff is suing Snap over Snap’s role in disseminating third-party content–Section 230 applies. This isn’t a close question in my mind.

The district court dismissed the case per Section 230. On appeal, a 3 judge panel of the Fifth Circuit affirmed in a short per curiam opinion that essentially encouraged the plaintiff to seek an en banc hearing. The plaintiff’s en banc request was denied, but with some drama. The vote for an en banc hearing was 7 yes and 8 no, and the 7 yes votes wrote a dissent filled with misstatements about and antipathy towards Section 230. That close vote puts all future Section 230 appeals in the Fifth Circuit in a blender. Further, the dissent gave repeated shoutouts to Justice Thomas with the hope it might persuade him to take the case. I summarized the dissent’s overall theme with this meme:

The plaintiff appealed the case to the Supreme Court, and yesterday the Supreme Court denied certiorari–leaving in place the short per curiam affirmance from the 3-judge panel.

However, the Fifth Circuit’s Leia signal did reach Justice Thomas. He wrote a short dissent to the cert denial, joined by Justice Gorsuch. This isn’t the first time Justice Thomas has offered non-precedential musings bashing Section 230 (see links below). Even though the dissent opinion is legally irrelevant and redundant with his prior anti-Section 230 screeds, I once again fact-check Justice Thomas’ treatment of Section 230. As I’ve said before, it brings me no joy to parse words at this level of detail, but it’s necessary to highlight Justice Thomas’ rhetorical tricks that throw undeserved shade on Section 230 and its applicability here.

* * *

Thomas says: “the Court chooses not to address whether social-media platforms—some of the largest and most powerful companies in the world—can be held responsible for their own misconduct.”

Eric responds: False. By its own terms, Section 230 doesn’t apply to defendants’ own content or conduct–even if the Supreme Court never addresses the issue at all. Plaintiffs can always self-interestedly assert that their claims target first-party content/conduct, but that doesn’t mean the characterization is true. In this case, the plaintiff’s framing of the case was obviously unconvincing.

Thomas says: “a social-media platform is not legally responsible as a publisher or speaker for its users’ content.”

Eric responds: True! This is a restatement of Section 230. This sentence explains why the plaintiff lost in this case.

Thomas says: “The question whether §230 immunizes platforms for their own conduct warrants the Court’s review.”

Eric responds: Weird. That question doesn’t need to be answered by the Supreme Court. The statute answers the question itself. Section 230 doesn’t immunize services “for their own conduct.”

Thomas says: [In Gonzalez v. Google, the justices] “were unable to reach §230’s scope, however, because the plaintiffs’ claims would have failed on the merits regardless.”

Eric responds: True. The 230 issue was briefed and argued in the Gonzalez case. Everyone wanted the Supreme Court to issue an opinion discussing Section 230. You had your chance.

Thomas says: “Social-media platforms have increasingly used §230 as a get-out-of-jail free card.”

Eric responds: False in two ways. First, services aren’t “increasingly” using Section 230. They have consistently invoked it from day one. Second, Section 230 expressly excludes federal criminal prosecutions and always has. This post explains why the “get-out-of-jail-free card” analogy for Section 230 is wrong and never should be used.

Thomas says: “Many platforms claim that users’ content is their own First Amendment speech.”

Eric responds: Seriously? This is obviously false. The services claim First Amendment protection for their acts as publishers of third-party speech, including the gathering, organizing, and disseminating of that content. The services don’t claim that the third-party content is their own speech.

Thomas says: “Because platforms organize users’ content into newsfeeds or other compilations, the argument goes, platforms engage in constitutionally protected speech.”

Eric responds: That “argument” was just endorsed on Monday by 5 Supreme Court justices in the Moody opinion. Nice diss on your colleagues.

Thomas says: “Platforms claim that since they are not speakers under §230, they cannot be subject to any suit implicating users’ content, even if the suit revolves around the platform’s alleged misconduct.”

Eric responds: False in two ways. First, as discussed above, defendants don’t and cannot invoke Section 230 for their own “misconduct.” They can only claim Section 230 immunity for claims based on third-party content. Second, “platforms” aren’t merely “claiming” that “they are not speakers.” Instead, that is what Congress expressly DECLARED in Section 230. The statute says that services shall not be treated as publishers or SPEAKERS of third-party content. It’s a Congressionally-created statutory FACT that services aren’t speakers of third-party content. It’s literally in the statute.

Thomas says: “In the platforms’ world, they are fully responsible for their websites when it results in constitutional protections, but the moment that responsibility could lead to liability, they can disclaim any obligations and enjoy greater protections from suit than nearly any other industry.”

Eric responds: It’s not just the “platforms’ world.” It’s the law of the United States. Justice Thomas restates how Congress added Section 230 to the Constitutional protections in the First Amendment. As I explain here, Section 230 is a speech-enhancing statute that supplements the baseline publisher protections ensured by the First Amendment. That paper also explains why the supplemental coverage Section 230 provides above-and-beyond the Constitution has numerous beneficial policy implications.

Case Citation: Doe v. Snap, Inc., 2024 WL 3259814 (U.S. Supreme Ct. July 2, 2024).

Prior Posts on Justice Thomas’ Anti-Section 230 Non-Precedential Statements (Note: I recommend you do not go back and read these post because Justice Thomas’ free-associations about the law are painful reading):