Justice Thomas (Again) Urges Reconsideration of the Scope of Section 230

Today, the Supreme Court rejected certiorari Doe V. Facebook, Inc. Justice Thomas wrote an opinion regarding the denial. It reiterated his idea that the Supreme Court should examine the immunity afforded to Facebook publishers and others under Section 223 of the Communications DecencyAct in the appropriate case.

Jane Doe, 15, was lured to a meeting by a male adult sexual predator via Facebook in 2012. She was raped repeatedly, beat and sold for sex shortly afterwards. Doe managed to escape and sue Facebook in Texas state courts, claiming that Facebook violated Texas’ antisex trafficking statute. Doe also claimed other common-law violations. Facebook applied to the Texas Supreme Court for an order of mandamus, which would have dismissed Doe’s lawsuit. 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) provides that, “[n]Providers or users of an interactive service must be treated the same as speakers or publishers of any information offered by other content providers. 47 U. S. C. §230(c)(1). Texas Supreme Court stressed that all courts have treated online platforms the same as publishing.[s]” under §230(c)(1), and thus immune, whenever a plaintiff ‘s claim “‘stem[s]Starting at [the platform’s]Publication of information by third parties. Inc.., 625 S. W. 3d 80, 90 (Tex. 2021) (quoting Doe v. MySpace, Inc., 528 F. 3d 413, 418 (CA5 2008)). This expansive view of publisher immunity is relevant to this case. It means internet companies are not liable for failing to inform consumers about defects in their products or taking reasonable steps to “protect their users against the malicious or objectionable activities of others.” 625 S. W. 3d, at 83. 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, id., at 90–91, but the court ultimately felt compelled to adopt the consensus approach, id., at 91.

This decision exemplifies how courts have interpreted §230 “to confer sweeping immunity on some of the largest companies in the world,” Malwarebytes, Inc. against Enigma Software Group USA, LLC592 U.S. (2020), slip op., 1 (statement THOMAS, J.) referring to denial of certiorari), primarily by using an “capacious conception” of what it is to consider a website operator as [a]Publisher or speaker id., at _____ (slip-op. at 8) (internal quotes omitted). 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. Fourth Amendment Pet. in Number. 2018–69816 (Dist. Ct. Harris Cty., Tex. (Febru. 10, 2020), pp. 20, 22, 23; Also seeReply Brief 3, No. 1, 4 and 2, n. 2. (Listing the most recent disclosures to support 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.” Fourth amended Pet. at 21.

We should at least be sure that the law requires us to close the doors on serious accusations before closing the books. Malwarebytes, 592 U. S., at ___ (slip op., at 10). 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. You are invited to sign up., at ___ (slip op., at 4). This is where the Texas Supreme Court made it clear that:[t]he United States Supreme Court—or better yet, Congress—may soon resolve the burgeoning debate about whether the federal courts have thus far correctly interpreted section 230.” 625 S. W. 3d, at 84. Assuming Congress does not step in to clarify §230’s scope, we should do so in an appropriate case.

Unfortunately, it isn’t so. Only “[f]Inal Judgments or Decrees” from state courts. 28 U. S. C. §1257(a). Finality is often a result of “an effective determination in the litigation, and not merely of interlocutory steps or intermediate ones.”Market Street R. Co. v. Railroad Comm’n Cal., 324 U. S. 548, 551 (1945). The litigation was not considered “final” because Doe’s statute claim was allowed to proceed by the Texas Supreme Court. Doe acknowledges this and relies upon a limited exception to the finality rules that applies only in cases where the federal issue is decided definitively by the highest court of the state. This will apply regardless of any outcome of subsequent state court proceedings. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975). But that exception cannot apply here because the Texas courts have not yet conclusively adjudicated a personal-jurisdiction defense that, if successful, would “effectively moot the federal-law question raised here.” Jefferson v. City of Tarrant, 522 U. S. 75, 82 (1997).

Accordingly, I accept the Court’s refusal to grant certiorari. We should, however, address the proper scope of immunity under §230 in an appropriate case.