US Supreme Court Justice Clarence Thomas’ efforts to rein in Section 230 of the Communications Decency Act were once again thwarted when the high court in July denied review of a case about immunity from liability for social media platforms.
By doing so, the court chose “not to address whether social-media platforms—some of the largest and most powerful companies in the world—can be held responsible for their own misconduct,” Thomas said in his dissent to the denial.
Justice Neil Gorsuch joined the dissent, where Thomas highlighted the conflicting arguments social media platforms make in two separate cases—which conceivably could dismantle the platforms’ claim to immunity under Section 230.
A Passive Conduit for Purposes of Section 230
Section 230 affords social media platforms and many other internet service providers broad immunity from liability. It states that a provider of interactive computer services shouldn’t be treated as a “publisher or speaker” of information provided by a third party. The statute also shields providers from liability when they block (or don’t block) objectionable information provided by a third party.
Social media platforms largely have taken the position that they don’t play a hand in the objectionable content posted on their platforms. They are, as some courts have recognized, passive conduits or transmitters of third-party content.
Consequently, courts have granted immunity to social media platforms that have been sued for offensive or defamatory content posted by a third party. However, the immunity has also been applied in other cases where the social media platforms arguably played a more active role in advancing objectionable content.
For example, in the case that was denied review in July, Doe v. Snap, the minor plaintiff alleged that his high school teacher groomed him for a sexual relationship on Snapchat, a social-media platform known for its ephemeral, self-deleting messages. Doe pursued a product liability lawsuit against Snapchat, alleging that it negligently designed its application by allowing messages to automatically delete shortly after they’re sent and for allowing minors to use the application. In essence, Snapchat created an environment that draws sexual predators who can interact with underage users without long-lasting evidence, the plaintiff argued.
Relying on Fifth Circuit precedent, the federal district court found that Snapchat was immune from liability because Doe sought to hold Snapchat liable for the illicit messages that a third party sent to Doe. The Fifth Circuit affirmed the lower court’s decision, and denied rehearing en banc.
Several Fifth Circuit judges dissented, pointing out that “immunity from design defect claims is neither textually supported nor logical because such claims fundamentally revolve around the platforms’ conduct, not third-party conduct.”
They called upon the Supreme Court to right the wrong and to properly interpret Section 230. The high court declined to do so though.
Curator of Content for Purposes of the First Amendment
Despite enjoying broad immunity as passive conduits of information, social media platforms seemed to argue the opposite in Moody v. NetChoice LLC and NetChoice LLC v. Paxton, which were before the Supreme Court this past term.
The plaintiffs in the cases are trade associations whose members include Facebook and YouTube. They argued that the Texas and Florida laws at issue sought to control who and what could be posted, infringing the core First Amendment rights of the social media platforms by “denying them editorial control over their own websites, while forcing them to publish speech that they do not wish to disseminate.”
The social media platforms provide “a curated and edited compilation of content” to their viewers, and should thus be protected under the First Amendment, NetChoice said. In addition, they generate expression by adding warnings or disclaimers to third-party content and publishing their own content, NetChoice argued.
The Supreme Court ultimately vacated the lower court decisions in Moody and Paxton, and sent the cases back for proper analysis.
In his dissent, Thomas highlighted the conflicting First Amendment argument, noting that “many platforms claim that users’ content is their own First Amendment speech. Because platforms organize users’ content into newsfeeds or other compilations, the argument goes, platforms engage in constitutionally protected speech.”
But when the platforms want to avoid liability, they argue the opposite, Thomas said. “Platforms claim that since they are not speakers under Section 230, they cannot be subject to any suit implicating users’ content, even if the suit revolves around the platform’s alleged misconduct,” Thomas said.
No Longer an Electronic Bulletin Board
On the one hand, social media platforms can’t be held liable for exercising “a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone, or alter content"—a standard held by many courts since a 1997 Fourth Circuit opinion.
However, content creation is more than editorializing, and it propels social media platforms beyond the protections afforded under Section 230. In the past, social media platforms were stripped of immunity for acting more like content developers, such as in Liapes v. Facebook, where Facebook was producing targeted ads, or in Vargas v. Facebook, where the Ninth Circuit described Facebook as a “co-developer of content.” In Roland v. Letgo, Inc., the District of Colorado determined that Letgo was not immune from liability because it contributed to the account verification process in question.
Platforms that curate or generate expression by adding addenda or publishing their own posts are no longer passive “bulletin boards” for third-party content. By establishing themselves as content developers—either in whole or in part—in order to protect their freedom of expression, social media platforms are setting themselves up for the inevitable curbing of their Section 230 immunity.
By highlighting these issues in his dissent, Justice Thomas continues to chip away at the stature of Section 230, in hopes that one day an appropriate case will reach the Supreme Court and the statute can be properly interpreted.
Bloomberg Law subscribers can find related content on our Litigation Practical Guidance Library page and our In Focus: Social Media resource.
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