Courts & Litigation

Supreme Court Declines to Review Case on Section 230 (For Now)

Anna Salvatore
Wednesday, October 14, 2020, 1:27 PM

Published by The Lawfare Institute
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The Supreme Court declined yesterday to review the scope of Section 230 of the Communications Decency Act (CDA), which gives online platforms immunity from civil liability for third-party content on their services. Justice Clarence Thomas released a statement agreeing with the court's decision to not hear the Section 230 case, known as MalwareBytes Inc. v. Enigma Software Group USA, LLC. But he argued that courts have interpreted the provision to confer far more immunity to online platforms than the law requires, and therefore that the Supreme Court should reexamine the issue when a better case presents itself.

The U.S. Court of Appeals for the Ninth Circuit held that the "policy" and "purpose" of Section 230(c)(2) deprives MalwareBytes of immunity from Enigma's accusations of anticompetitive conduct. Thomas disputes the lower court's "nontextual" interpretation of the law, which, he argues, relied on broad predictions about legislators' goals rather than what he feels are the inexorable commands of the statute. In the future, Thomas would prefer to review cases in which a lower court grants immunity to an online platform using the same "policy" and "purpose" language, allowing the Supreme Court an opportunity to set a nationwide precedent cabining the scope of Section 230.

To Thomas, the real scope of Section 230 is quite modest: Section 230(c)(2) holds that internet platforms cannot be held liable for good-faith efforts to remove or restrict illegal content from third parties, and Section 230(c)(1) means that they’re also not liable for illegal content unknowingly left up on their sites. But Thomas gives several examples of what he sees as lower courts unduly expanding the provisions to confer "sweeping protection to Internet platforms." He claims that courts have wrongly given immunity to companies that knowingly distributed illegal content; that courts have given companies immunity from liability for their own published content, even though the law covers third-party content; that by construing Section 230 to protect any form of content moderation, courts have encouraged racially discriminatory practices and that judges have given internet platforms the benefit of the doubt even when platforms are complicit in human trafficking and terrorism. Writing that "other examples abound" of lower courts finding broad immunity for platforms in the "policy" and "purpose" of Section 230, Thomas concludes that the Supreme Court should restore the law's narrow scope in an appropriate case.

You can read his statement here and below:

Anna Salvatore is a rising freshman at Princeton University. She previously served as the editor in chief of High School SCOTUS, a legal blog written by teenagers. She is now a fall intern at Lawfare.

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