WASHINGTON (CN) — Justice Clarence Thomas urged the Supreme Court on Monday to enter a brawl over how to hold internet companies accountable for users' posts on their platforms.
The clamor broke out from the court's otherwise routine rejection of parties seeking cert; in this instance, it was a challenge that concerns a minor who was trafficked for sex by way of ads on Facebook. Thomas said such a case could bring the chance to tackle Section 230 of the Communications Decency Act, even if this case at hand is not the ideal vehicle.
“Assuming Congress does not step in to clarify §230’s scope, we should do so in an appropriate case,” the Bush appointee wrote.
Congress enacted Section 230 in 1996 to answer the question of whether internet companies should be liable when people on their platforms post speech that harm other people. The answer was no.
“Section 230 has been a lifeline for internet companies because whenever they offer their services to the world, someone somewhere is going to use those services to harm other people,” Anupam Chander, a professor of law and technology at Georgetown, said in a phone call.
Twenty-five years later the provision has come under harsh criticism that only sharpened in single term of former President Donald Trump, who found himself de-platformed by Facebook and Twitter in the wake of the Jan. 6 insurrection at the Capitol. Trump was by no means the first controversial internet figure to be kicked off sites, but his dismissal was a high-profile case that ignited harsh criticism over how big tech companies regulate speech. In particular, many Republicans claim these companies favor speech from the left while stifling speech from the right.
But supporters of Trump are not the only ones riled by Section 230. On the other side of the aisle, some on the left believe immunities in the act allowed for the rise and therefore victory of Trump. They believe Section 230 allows big tech companies to allow too much speech such as hate speech or harassment.
In short, Section 230 doesn’t have many allies in D.C. but what can be done to fix it is still a point of contention.
As Thomas said in his statement, some have called on Congress to address the act. The most extreme option would be to eliminate the statute outright. This would get rid of all protections currently enjoyed by tech companies. Other options include narrowing the act through amendments. These would likely gut the protections offered in the act.
Similarly, what Thomas is suggesting the court do is narrow the scope of Section 230.
“At the very least, before we close the door on such serious charges, ‘we should be certain that is what the law demands,’” Thomas wrote. “As I have explained, the arguments in favor of broad immunity under §230 rest largely on ‘policy and purpose,’ not on the statute’s plain text.”
One way to narrow Section 230, as Thomas suggests, would be to remove protects for distributor liability — in other words creating liability for tech companies that fail to remove improper posts after they have been informed of legal violations.
The argument for narrowing Section 230 is that tech companies have too much power and need to be held more accountable for what is posted on their platforms. Still, narrowing Section 230 could end up suppressing speech online.
“The fear in that context — and I think a legitimate fear — is that really the most litigious among us are going to weaponize those rights in ways that really exceed their actual rights to suppress a lot of speech online,” Chander said.
An example of this would be a very wealthy and powerful celebrity leveraging their power to suppress allegations against them. If someone accused that celebrity of sexual assault in a Facebook post, the celebrity could go to Facebook and say they had to remove the post or face a lawsuit.
“You still have to prove that you are liable for that in some contributory way, etc., but the problem is that kind of proof is expensive to mount, that defense is expensive to mount,” Chander said. “And so, what that means, effectively, is if you are well counseled, you say, I don't want to spend $100,000 defending this decision and I'm just going to take this down because someone's going to say this is violating my rights in some way.”
The threat of lawsuits from powerful and wealthy people may be enough to sway companies into taking down negative posts just to avoid the conflict. Those powerful people don’t even always have to be truthful in their claims, as was proven with defamation lawsuits from Lance Armstrong claiming he was not doping when he actually was.
While Thomas seems ready to review and possibly narrow Section 230, his statement was not joined by any of his colleagues, and so far there hasn’t been any public support on the issue from other justices.
“I don't think you've seen any public support for reviewing 230,” Chander said. “It would mean a marked shift in how the internet works in the United States, and 230 is the foundation of the internet that we have today. It would be very significant decision.”
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