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Justice Clarence Thomas Calls for Supreme Court to Reevaluate “Proper Scope of Immunity” for Big Tech Under Section 230


Supreme Court Justice Clarence Thomas fired another warning shot at Section 230 of the Communications Decency Act (CDA), the law granting Big Tech wide legal immunity to host and censor third-party content.

Thomas has previously suggested the Supreme Court may have to narrow the protections of Section 230 in an appropriate case.

Since Congress hasn’t taken steps to clarify 230’s scope, Thomas urged his colleagues to take action.

Breitbart reported:

Section 230 of the CDA is integral to the business model of major tech platforms because it ensures they are not held legally liable for the billions of items of user-generated content hosted by them.

It also confers immunity on platforms for removing or moderating content — a less necessary protection, as control over the filtering of content can be headed over to users through block buttons and optional filters without threatening the business models of social media platforms.

Many Republicans have suggested in recent years that Section 230 should be conditioned on platforms remaining politically neutral and open for free expression, to protected the free speech of users.

Thomas gave his opinion in a statement on the Supreme Court’s denial of certiorari in Jane Doe v. Facebook. The case involved a child rapist who used Facebook to lure a 15-year old girl to a meeting, after which he repeatedly raped and beat her before trafficking her for sex.

The case, filed in the state court of Texas, sought to hold Facebook liable for violating Texas’s laws against sex trafficking, as well as a number of common law offenses. The state court allowed the sex trafficking case to proceed, but struck down the common law claims on Section 230 grounds.

Thomas stated it wasn’t the right case to make a decision on Section 230 since the sex trafficking case wasn’t struck down.

However, Thomas wants to address the proper scope of immunity under Section 230 in an appropriate case.

Law & Crime added:

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.”

He elaborated, making a case for holding Facebook accountable for prioritizing profits over safety:

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.

Thomas called it “hard to see” why §230 should give Big Tech protection from liability for companies’ “own ‘acts and omissions.’” In a case with “such serious charges,” said the justice, the Court “should be certain” that the law truly demands such protection for internet companies.


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