Justice Thomas Writes in Favor of a Narrow Reading of 47 U.S.C. § 230
From his statement today respecting the denial of certiorari this morning in Malwarebytes, Inc. v. Enigma Software Group USA, LLC:
I write to explain why, in an appropriate case, we should consider whether the text of this increasingly important statute [47 U.S.C. §230] aligns with the current state of immunity enjoyed by Internet platforms….
[The statute:] Enacted at the dawn of the dot-com era, §230 contains two subsections that protect computer service providers from some civil and criminal claims. The first is definitional. It states, “No 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.” §230(c)(1). This provision ensures that a company (like an e-mail provider) can host and transmit third-party content without subjecting itself to the liability that sometimes attaches to the publisher or speaker of unlawful content.
The second subsection provides direct immunity from some civil liability. It states that no computer service provider “shall be held liable” for (A) good-faith acts to restrict access to, or remove, certain types of objectionable content; or (B) giving consumers tools to filter the same types of content. §230(c)(2). This limited protection enables companies to create community guidelines and remove harmful content without worrying about legal reprisal.
[The publisher/distributor distinction:] Congress enacted this statute against specific background legal principles. See Stewart v. Dutra Constr. Co. (2005) (interpreting a law by looking to the “backdrop against which Congress” acted). Traditionally, laws governing illegal content distinguished between publishers or speakers (like newspapers) and distributors (like newsstands and libraries).
Publishers or speakers were subjected to a higher standard because they exercised editorial control. They could be strictly liable for transmitting illegal content.
But distributors were different. They acted as a mere conduit without exercising editorial control, and they often transmitted far more content than they could be expected to review. Distributors were thus liable only when they knew (or constructively knew) that content was illegal. See, e.g., Stratton Oakmont, Inc. v. Prodigy Services Co., (N.Y. trial ct. 1995); Restatement (Second) of Torts §581 (1976); cf. Smith v. California (1959) (applying a similar principle outside the defamation context).
The year before Congress enacted §230, one court blurred this distinction…. The court determined that [a service provider’s] decision to exercise editorial control over some content “render[ed] it a publisher” even for content it merely distributed. Taken at face value, [in relevant part,] §230(c) alters the Stratton Oakmont rule … [by] indicat[ing] that an Internet provider does not become the publisher of a piece of third-party content—and thus subjected to strict liability—simply by hosting or distributing that content. [But a] dopting the too-common practice of reading extra immunity into statutes where it does not belong, see Baxter v. Bracey (2020) (Thomas, J., dissenting from denial of certiorari [and writing about qualified immunity]), courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms….
Courts have discarded the longstanding distinction between “publisher” liability and “distributor” liability. Although the text of §230(c)(1) grants immunity only from “publisher” or “speaker” liability, the first appellate court to consider the statute held that it eliminates distributor liability too—that is, §230 confers immunity even when a company distributes co
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