Justice Clarence Thomas Asks the Supreme Court to Reevaluate Big Tech's Immunity Under Section 230


Justice Clarence Thomas issued a statement on Monday about the denial of certiorari in the Jane Doe v. Facebook case. In his statement, Justice Thomas called for the Supreme Court to “address the proper scope of immunity under §230 in an appropriate case” available to Big Tech.

Justice Thomas narrated that it’s “hard to see” why section 230 is protecting the Big Tech from liability for companies’ “own ‘acts and omissions.’

“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,” Justice Thomas stated.

“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,” he said.

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“I, therefore, concur in the Court’s denial of certiorari. We should, however, address the proper scope of immunity under §230 in an appropriate case,” he concluded.

Law and Crime reported:

Calls to “repeal Section 230” have become a rallying cry for conservatives who argue, as petitioners did, that §230 “has strayed far from its origins and text,” and that Big Tech needs to be reined in.

The law is a section of the Communications Decency Act of 1996 which shields internet companies acting as intermediaries from liability based on what users post. Under the current version of §230, platforms such as Facebook and Twitter are not “publishers,” and are not responsible for defamation or similar claims based on user-created content that violates the law.

The case presented to SCOTUS involved an adult male sexual predator who used Facebook to lure a 15-year-old girl to a meeting. The predator repeatedly raped and beat the girl, then trafficked her for sex. The girl, known in court documents only as “Jane Doe,” escaped and sued Facebook in Texas state court, claiming that Facebook violated the Lone Star State’s anti-sex-trafficking statute and committed various common law offenses.

Doe’s statutory sex-trafficking claim was permitted to go forward, but the Texas Supreme Court dismissed Doe’s common law claims, ruling that they were barred by §230. Justice Thomas agreed that SCOTUS’s refusal to consider the case was correct — but only because of a procedural issue. Thomas was quick to clarify that he believes it is time to reconsider the protections granted by §230; but because the Texas Supreme Court allowed Doe’s sex-trafficking claim to proceed, the court’s ruling was not sufficiently “final” for SCOTUS to review.

Thomas was clear: In a case without this procedural glitch, he would be more than happy to reconsider the rules on how §230 has “confer[red]  sweeping immunity on some of the largest companies in the world.”

Read more here.

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