In the Supreme Court’s October 13 Order List, Justice Thomas issued a statement regarding the denial of certiorari in a case out of the Ninth Circuit—Malwarebytes Inc. v. Enigma Software Group USA, LLC—that we have previously written about here. In his statement, Justice Thomas “agree[s] with the Court’s decision not to take up the case,” but goes on to “explain why, in an appropriate case, [the Court] should consider” the scope of the immunity from civil liability that Section 230 provides to online platforms. Justice Thomas makes clear his view that the scope of immunity should be narrowed—a view that, if adopted, could have major repercussions for online platforms and for speech on the Internet.
What’s at Stake?
As we have previously discussed, Section 230 of the Communications Decency Act is a federal law that broadly immunizes online platforms from liability for content published on their services in two ways. First, Section 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Under this provision, a website generally cannot be held liable for defamatory, illegal, or otherwise-problematic content posted to the website by a third party. Second, Section 230(c)(2) provides a “Good Samaritan” exception that shields from liability any actions “taken in good faith” by providers or users of interactive computer services to restrict access to “objectionable” material. Under this provision, a website generally cannot be held liable for—for example—moderating or filtering certain content on its platform.
Proponents of Section 230 hail it as one of the most valuable tools for protecting freedom of expression and innovation on the Internet. They contend that it strikes the right balance in precluding onerous litigation over the large volume of third-party content posted to online platforms, while also encouraging content moderation through the Good Samaritan provision. Law enforcement has argued that Section 230 has hindered efforts to go after “truly bad actors” online and bring civil enforcement actions. Others—most notably President Trump—contend that Section 230 gives online platforms too much control over online discourse. These criticisms have led to calls for Section 230 reform from Congress, the White House, the Department of Justice, and others.
Courts Have Construed Section 230 Broadly
While the Supreme Court has never weighed in on the scope of Section 230 liability, lower courts have given the provision a broad scope. In Zeran v. America Online, an opinion issued a year and a half after the passage of Section 230, the Fourth Circuit held that the underlying purpose of Section 230—eliminating the “chilling effect” that the “specter of tort liability” would create for online services that process content from “millions of users”—counseled in favor of a broad construction. The court thus held that an online platform could not be held liable for posting defamatory statements even after it was notified of the statements’ defamatory nature. Courts have generally accepted Zeran’s broad construction of the statutory immunity. Indeed, Justice Thomas notes—with criticism—that courts “have adopted [Zeran’s] holding as a categorical rule across all contexts.”
Justice Thomas’s Arguments for Narrowly Interpreting Section 230
Justice Thomas advances four arguments for narrowing the lower courts’ broad construction of Section 230(c)(1)’s immunity for online platforms’ publishing of third-party content. Section 230(c)(1)’s immunity, Justice Thomas claims, (a) should extend only to publishers, not distributors; (b) should not extend to online platforms’ selection and editing of third-party content; (c) should be interpreted narrowly so as not to swallow up Section 230(c)(2)’s “Good Samaritan” immunity for online platforms’ good faith removal of objectionable content; and (d) should not be interpreted to preclude traditional product-defect claims.
Publisher/Distributor distinction: Justice Thomas finds questionable lower courts’ construction of “publisher” and “speaker” liability in Section 230(c)(1). Justice Thomas’s argument is grounded in the traditional tort law distinction between (i) publishers (e.g., newspapers), which may generally be held liable for all defamatory statements in their works, and (ii) distributors (e.g., newsstands), which may generally be held liable only for defamatory statements of which they have actual knowledge. Justice Thomas argues that Section 230’s preclusion of “publisher or speaker” liability may not preclude distributor liability for three reasons:
First, Justice Thomas observes that Congress explicitly imposed distributor liability in Section 502 of the Communications Decency Act, indicating that Congress knew how to talk about distributor liability in the statute and chose not to in Section 230.
Second, Justice Thomas (i) notes that many courts have flagged a New York state court decision—Stratton Oakmont v. Prodigy Services—as the impetus for Congress to pass Section 230, and (ii) that decision distinguished between “publishers” and “distributors,” thereby (iii) indicating that Congress was aware of the distinction between publishers and distributors and chose to preclude only publisher liability.
Third, Justice Thomas argues that Congress could have easily broadened the liability shield by using the language in Section 230(c)(2)’s Good Samaritan provision (i.e. “No provider or user of an interactive computer service shall be held liable on account of . . .), suggesting that Congress’s decision not to use this broader language in Section 230(c)(1) was a conscious limitation on the scope of immunity.
Online platforms’ selection and editing of third-party content: Justice Thomas argues that Section 230(c)(1) should not protect companies from liability when they select, edit, and add commentary to third-party content on their platforms. In Justice Thomas’s view, these activities are part of the process of creating or developing content and are thus outside the scope of Section 230(c)(1). He points to two textual clues to reach this conclusion. First, he notes that the plain text of Section 230(c)(1) limits the scope of immunity to content “provided by another information content provider,” and thus does not extend to content provided by the platform itself. Second, he finds that this limitation is buttressed by the definition of “information content provider” in Section 230(f)(3), which includes entities “responsible, in whole or in part, for the creation or development” of content. Justice Thomas reads these two provisions in tandem to conclude that platforms editing and providing context to third-party content are likely activities that, “in part,” “creat[e] or develo[p]” the final product, thus placing them outside the scope of Section 230(c)(1)’s protections.
Rendering Section 230(c)(2) superfluous: Justice Thomas also contends that Section 230(c)(1) should not be read to encompass “any decision to edit or remove content” because that interpretation would render the Good Samaritan provision superfluous. In other words, Justice Thomas argues that Section 230(c)(2)’s limitation of liability for good faith actions to restrict access to objectionable content would hold no meaning if Section 230(c)(1) were read so broadly that it alone precluded liability for editing or removing content.
Precluding product-defect claims: Lastly, Justice Thomas argues that courts should not extend immunity for claims that are not premised on traditional publishing functions—specifically mentioning product liability claims and allegations that a provider has targeted and recommended content to specific users. Justice Thomas reasons that these kinds of claims do not “necessarily try to hold the defendants liable ‘as the publisher or speaker’ of third-party content,” but instead “rest on alleged product design flaws” that stem from the platform’s alleged misconduct.
Justice Thomas concludes by encouraging the Court to “decide . . . the correct interpretation of §230 . . . in an appropriate case[.]”
For the reasons given in Justice Thomas’ statement, the Supreme Court may well grant certiorari in another Section 230 case and interpret Section 230’s immunity narrowly. Alternatively, Justice Thomas’s blueprint may prompt lower courts to begin curtailing the reach of Section 230, to the extent they are not prevented from doing so by circuit precedent. In any event, both political parties and both political branches seem poised to significantly limit the scope of Section 230. Regardless of how it may happen, the narrowing of Section 230 would likely have widespread effects on expression in the digital age.