Oct 14, 2020 - Technology

Clarence Thomas wants to reel in Section 230

A photo of a computer displaying an audio stream of Clarence Thomas speaking during a Supreme Court teleconference
Photo: Drew Angerer via Getty Images

The long-standing but now hotly contested law that keeps online platforms from being held liable for what users post should be narrowed, conservative Supreme Court Justice Clarence Thomas wrote Tuesday.

Why it matters: Section 230 of the Communications Decency Act is a growing target of bipartisan ire. Thomas, arguably the most conservative member of the Supreme Court, is laying down a marker as the likely confirmation of Amy Coney Barrett looks set to tip the high court further right.

Driving the news: Thomas wrote about Section 230 in a filing following the court's decision not to hear a Section 230-related case, MalwareBytes Inc. v. Enigma Software Group.

  • Thomas said his fellow justices were right to pass on the case, which centered on whether MalwareBytes, an internet security company, could be held liable for what Enigma Software said was a wrongful designation of its products as malware.
  • But he said it should welcome the chance to scale back Section 230 from the bench through a different case.

What he's saying: "Extending §230 immunity beyond the natural reading of the text can have serious consequences," Thomas wrote, adding that when the right case comes to the court, it would "behoove" the justices to consider a narrower reading of the law.

  • Thomas wrote that internet companies have been granted "sweeping protection" and that courts are reading more comprehensive immunity into Section 230 than was intended.

The other side: Internet companies and the law's authors have long argued that the purpose of Section 230 was to allow companies to moderate online content and remove material as they see fit — and that companies like Facebook, Google, Twitter and Yelp couldn't exist in their current form without the law.

Yes, but: Those defenses have a shrinking constituency in Washington.

  • Republicans including President Donald Trump now argue the law acts as a license for tech platforms to censor conservative views. (There's little to no evidence for these claims of anti-conservative bias, which the platforms deny.)
  • Democrats including Joe Biden have said Congress should revisit Section 230 to make tech firms more accountable for misinformation and hate speech.

Reality check: A number of Section 230-related bills have circulated in Congress in the past year. None stand a change of passing before 2021.

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