Justice Thomas Argues Again for Reading § 230 Immunity More Narrowly
From Justice Thomas’s statement respecting denial of certiorari today in Doe v. Facebook, Inc. [UPDATE: just saw that Jonathan beat me to it, but I thought I’d keep this up; the main extra matters in this post are the excerpts from the Texas Supreme Court opinion, which may help explain the background of the litigation]:
In 2012, an adult, male sexual predator used Facebook to lure 15-year-old Jane Doe to a meeting, shortly after which she was repeatedly raped, beaten, and trafficked for sex. Doe eventually escaped and sued Facebook in Texas state court, alleging that Facebook had violated Texas’ anti-sex-trafficking statute and committed various common-law offenses. Facebook petitioned the Texas Supreme Court for a writ of mandamus dismissing Doe’s suit. The court held that a provision of the Communications Decency Act known as § 230 bars Doe’s common-law claims, but not her statutory sex-trafficking claim.
Section 230(c)(1) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The Texas Supreme Court emphasized that courts have uniformly treated internet platforms as “publisher[s]” under § 230(c)(1), and thus immune, whenever a plaintiff ‘s claim “‘stem[s] from [the platform’s] publication of information created by third parties.'”
As relevant here, this expansive understanding of publisher immunity requires dismissal of claims against internet companies for failing to warn consumers of product defects or failing to take reasonable steps “to protect their users from the malicious or objectionable activity of other users.” The Texas Supreme Court acknowledged that it is “plausible” to read § 230(c)(1) more narrowly to immunize internet platforms when plaintiffs seek to hold them “strictly liable” for transmitting third-party content, but the court ultimately felt compelled to adopt the consensus approach.
This decision exemplifies how courts have interpreted § 230 “to confer sweeping immunity on some of the largest companies in the world,” particularly by employing a “capacious conception of what it means to treat a website operator as [a] publisher or speaker.” 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. [Plaintiff’s Complaint]; see also Reply Brief (listing recent disclosures and investigations supporting these allegations). 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.”
At the very least, before we close the door on such serious charges, “we should be certain that is what the law demands.” As I have explained, the arguments in favor of broad immunity under § 2
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