Clarence Thomas Suggests Section 230 Immunities Applied Too Broadly to Tech Companies

Associate Supreme Court Justice Clarence Thomas in the Rose Garden of the White House in Washington, April 10, 2017. (Joshua Roberts/Reuters)

Supreme Court justice Clarence Thomas suggested in a statement on Tuesday that some legal immunities granted to internet platforms under Section 230 of the Communications Decency Act could be narrowed or eliminated in future court cases.

Section 230 grants internet platforms immunity from prosecution if a third party uploads defamatory or otherwise illegal content. For example, a blog website currently cannot be held legally liable if a third-party blogger writes a libelous post. (Such immunity does not generally apply in more extreme cases of illegal activity, such as when a website displays child pornography.)

However, both conservatives and liberals have threatened to revoke this immunity and open large internet platforms like Facebook and Twitter to lawsuits. Joe Biden stated in a New York Times interview in January 2020 that Facebook should lose Section 230 immunity because of the prevalence of political “misinformation” on the platform.

Some conservatives have bristled at what they perceive as anti-conservative bias on sites including Twitter, and have called to revoke Section 230 and threaten those sites with lawsuits over the perceived bias, which they claim reflects editorial decision making that makes the platforms no different from journalistic outlets.

Justice Thomas indicated on Tuesday that the Supreme Court could also consider, in future cases, whether the judicial system has interpreted Section 230 immunity too broadly.

Courts have…departed from the most natural reading of the text by giving Internet companies immunity for their own content,” Thomas wrote in a statement. “Section 230(c)(1) protects a company from publisher liability only when content is ‘provided by another information content provider.’ Nowhere does this provision protect a company that is itself the information content provider.”

According to Thomas, courts may have interpreted Section 230 in such a way as to grant immunity to internet platforms even when those platforms are primarily responsible for the creation of their content. “An information content provider is not just the primary author or creator; it is anyone ‘responsible, in whole or in part, for the creation or development’ of the content,” Thomas wrote.

A reinterpretation of Section 230 immunities could carry widespread ramifications for internet platforms, potentially forcing companies to narrow the types of posts allowed on a given website. The Justice Department has already proposed legislation to Congress that would curb some immunities in order to better crack down on illegal content.

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Zachary Evans is a news writer for National Review Online. He is a veteran of the Israeli Defense Forces and a trained violist.

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