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  • Writer's picturePeter DiSilvio

Justice Thomas On Social Media Immunity

Earlier this week the Supreme Court declined to hear the matter of Doe v. Facebook wherein the Plaintiff was accusing Facebook of being liable for the injuries she received after being lured into a trap by a sexual predator, beaten, abused, and raped. Justice Thomas issued a dissental echoing another opinion he penned earlier this year calling for the Supreme Court to reconsider the scope of immunity offered to social media company under Section 230 of the Communications Decency Act in an appropriate case [1].

What Was The Case About?

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.

What is a Dissental?

A dissental is when any active judge publishes a dissent from any decision, even thought he did not participate in it and the Court has declined to review the matter entirely. Basically, when a Judge issues a decent after the Court decides not to even hear the case much less rule on it. According to a study by Yale Law, 45 judges have filed some 290 dissentals in over 230 cases in the Ninth Circuit. This includes 41 of the 71 who have served as active judges since 1970. And all but 10 of those 71 have joined dissentals written by others. Hundreds more dissentals have been filed in the courts of appeals nationwide. Some judges are so dissental-happy they file two in the same case [2].

What is Section 230?

Section 230 of Title 47 of the United States Code enacted as part of the United States Communications Decency Act, has two primary parts both listed under §230(c) as the "Good Samaritan" portion of the law. Under §230(c)(1), an information service provider such as Twitter or Facebook shall not be treated as a "publisher or speaker" of information from another provider. §230(c)(2) provides immunity from civil liabilities for these same services when they remove or restrict content from their services they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected", as long as they act "in good faith" in this action. §230 vaulted into the public consciousness when then-President Trump raised the specter of amending or repealing the law in retaliation for what he believed was unfair treatment of him and his supporters by social media companies.

What Did Justice Thomas Say?

Justice Thomas' dissental following the Supreme Court's denial of cert in the matter of Doe v. Facebook called for the Court to "address the proper scope of immunity under §230 in an appropriate case." This is the second time the Justice has spoken about the issue of §230, the first being in 2020 when he warned of "serious consequences" from courts interpreting the immunity too broadly.

As the late Ruth Bader Ginsburg said "Dissents speak to a future age. It's not simply to say, 'My colleagues are wrong and I would do it this way.' But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that's the dissenter's hope: that they are writing not for today, but for tomorrow."

We must assume that Justice Thomas hopes his dissental will be received in much the same fashion; a message to the future about the dangers of §230 and the need for the Court to address the very real impact the law has had and continues to have on the lives of citizens.



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