After the maelstrom of Internet law news from the last week, the Supreme Court denied cert in Doe v. Snap, a brewing effort out of the Fifth Circuit to get the Court to revisit Section 230. Of note, there’s yet another dissent from Justice Clarence Thomas (now joined by Justice Neil Gorsuch) lamenting the Court’s refusal to take up 230 after the collapse of Gonzalez v. Google.
In addition to rehashing the usual 230 arguments from the TDCU (Thomas Dissent Cinematic Universe), this new dissent trots out a confused line of reasoning stemming from a back-and-forth between Justice Gorsuch and Paul Clement, representing the tech platforms’ trade association NetChoice, in the NetChoice v. Paxton oral arguments (starting on p. 10). In particular, Justice Gorsuch thinks it’s inconsistent for the platforms to assert that they are speakers engaged in First-Amendment-protected editorial discretion when they moderate content yet also assert Section 230 to preempt lawsuits that seek to treat them as speakers. To be fair, Clement botched this part of the exchange:
JUSTICE GORSUCH: So it’s speech for purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn’t your speech?
MR. CLEMENT: Yes, as a matter of statutory construction because, otherwise, Section 230 ends up being self-defeating because, again, the whole point of Section 230 was to promote that editorial discretion.
Clement’s mistake here was thinking that Gorsuch was asking him about “speech” qua 230. But Justice Gorsuch was also asking him about “speech” qua the First Amendment, which Justice Gorsuch conflates with “speech” qua 230. Clement’s “Yes” answer sounds like he’s conceding Gorsuch’s conflation of the two.
The correct response would have been something like: “There are two different kinds of ‘speech’ at issue here: our members’ editorial discretion, and the speech of the users on our platforms. On the one hand, our members’ editorial discretion in choosing to carry or moderate our users’ content is itself speech protected by the First Amendment. On the other hand, Section 230 precludes imposing liability that hinges on ‘treating’ us as the speaker ‘of any information provided by another information content provider’—i.e., the speech of our users.”
Regardless, even with Clement’s slip-up, Justice Gorsuch’s complaint doesn’t hang with any defensible reading of Section 230’s actual mechanics. I’ve seen allusions to two arguments, neither plausible:
- One dubious argument, which I debunked in Uncommon Carriage (pp. 148–49), is that Section 230 is a “quid pro quo” that platforms affirmatively opt into in exchange for forgoing their First Amendment speaker status. The problem is that Section 230’s immunization against speaker treatment is automatic—”no provider . . . of an interactive computer service shall be treated as [a] speaker”—no opt-in required.
- The even more risible argument that follows is that Section 230 somehow narrows the scope of speakers protected by the First Amendment. Of course, Congress can’t amend the Constitution with ordinary legislation, which requires following the extraordinary measures in Article V. Even the Fifth Circuit concedes this in NetChoice v. Paxton (citing Marbury v. Madison with a “cf.” signal, as one does), but throws up the Hail Mary that 230’s no-speaker-treatment mechanic somehow reflects “Congress’s judgment” that platforms descriptively aren’t speakers protected by the First Amendment. Judge Southwick’s partial concurrence/dissent (p. 111-12) eviscerates this ahistorical squealer; TLDR—it doesn’t matter if Congress had made such a judgment and even if it did matter, Congress didn’t make such a judgment in enacting 230. As Judge Southwick notes and as Eric Goldman has elaborated, 230 is best understood as simply going beyond the First Amendment by categorically immunizing platforms for liability that rests on treating them as speakers (or publishers) of their users’ speech.
At bottom, Justice Thomas and Justice Gorsuch seemingly just don’t like Section 230. But as Judge Southwick puts it: “This may be exactly how Section 230 is supposed to work.” Of course, there is no shortage of plausible policy arguments that platforms ought to be held more responsible for their carriage decisions, and that Section 230 should be amended accordingly. But the Court isn’t Congress, and the dissenting Justices’ dislike of the statute doesn’t include any plausible textual or historical argument for the Court to reimagine this particular aspect of Section 230’s mechanics.1 And even in this era of jurisprudential Calvinball, it looks like Justice Thomas and Justice Gorsuch simply don’t have the votes or the vehicle to get the Court to go their way on this one—at least for now.
- That’s not to say there aren’t plenty of arguable ambiguities in Section 230, including the scope of publisher-or-speaker immunity, as Alan Rozenshtein has observed. ↩︎