On Monday, the Supreme Court denied certiorari in Jane Doe v. Facebook, and Justice Thomas wrote another statement suggesting the possibility that the Supreme Court ought to review Section 230 of the Communications Act in an appropriate future case. Justice Thomas's statement in Doe makes the same point he did in his earlier statement in Malwarebytes, Inc. v. Enigma Software Group – that courts interpreting Section 230 have often made policy and purposivist arguments to deny common law distributor liability, arguably contradicting the statute's plain text.
In Doe, the Texas Supreme Court dismissed common law claims against Facebook brought by a then 15-year-old girl lured into sex trafficking by an adult male sexual predator on Facebook. In dismissing these claims, the Texas Supreme Court treated Facebook's actions as the "publication of information created by third parties" for which Section 230(c)(1) provides immunity.
But Doe's dismissed common law claims were "negligence, negligent undertaking, gross negligence, and products liability based on Facebook's alleged failure to warn of, or take adequate measures to prevent, sex trafficking on its internet platforms." As Justice Thomas noted in Malwarebytes, these types of claims, and particularly the products liability claim, may have involved actions or omissions by Facebook entirely outside the scope of "publication of information created by third parties," to which Section 230's immunity applies.
However, Justice Thomas respected denial of certiorari in Doe for procedural reasons, because the Texas Supreme Court permitted Doe's statutory claim to proceed, making the case unripe. He believes the Supreme Court should interpret Section 230 in the appropriate future case.
Justice Thomas continues to be a prolific commentator on communications law, also penning certiorari statements and opinions on applying common carriage and public accommodations law to Internet platforms, Brand X v. NCTA, the FCC's independence, and FCC preemption in recent years.
Free State
Foundation President Randolph May has written at length on Justice Thomas's views
on Section 230 and platform common carriage in his Thinking Clearly About Speaking Freely
series. The Free State Foundation also cosponsored Catholic University's inaugural
Seigenthaler Debate on platform common carriage.
Director of Policy Studies Seth Cooper wrote an October 2021 Perspectives from FSF Scholars about a
circuit split over whether there is an exception to Section 230 immunity for
claims pertaining to state intellectual property law – a split that could provide
future occasion for the Supreme Court to interpret Section 230.
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