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Supreme Court Justice Clarence Thomas

WASHINGTON, D.C., October 14, 2020 (LifeSiteNews) – As lawmakers and activists advocate for various changes to federal law to address social media giants’ manipulation of information, U.S. Supreme Court Justice Clarence Thomas weighed in by suggesting the heart of the problem is not the law itself, but how courts have interpreted it.

On Tuesday, the Supreme Court released a list of orders for numerous cases, among them Malwarebytes Inc. v. Enigma Software Group USA, LLC. The dispute concerns the limits of computer-service providers’ immunity from civil liability under Section 230 of the federal Communications Decency Act, in this case as it pertains to filtering decisions allegedly motivated by “anticompetitive animus.” 

The Supreme Court rejected a petition to take up the case, but Thomas issued his own statement which, while not legally binding, offers insight into the nature and limits of the hotly-contested law.

“Courts have also departed from the most natural reading of the text by giving Internet companies immunity for their own content,” Thomas writes. “Section 230(c)(1) protects a company from publisher liability only when content is ‘provided by another information content provider.’ Nowhere does this provision protect a company that is itself the information content provider…And an information content provider is not just the primary author or creator; it is anyone ‘responsible, in whole or in part, for the creation or development’ of the content.”

“But from the beginning, courts have held that §230(c)(1) protects the ‘exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content,’” Thomas continues. “Under this interpretation, a company can solicit thousands of potentially defamatory statements, ‘selec[t] and edi[t] . . . for publication’ several of those statements, add commentary, and then feature the final product prominently over other submissions—all while enjoying immunity.”

Thomas argues that “by construing §230(c)(1) to protect any decision to edit or remove content…courts have curtailed the limits Congress placed on decisions to remove content.”

In the context of social media, Section 230 immunizes websites from being held liable for the third-party content they host, such as posts, tweets, or videos uploaded by their users. This provision has been credited with helping the internet thrive, but has grown controversial in recent years as social media companies have grown bolder in exercising editorial judgment over which content to restrict and what to flag as “hateful,” “harmful,” or “misinformation.”

That trend has led to growing calls on the Right to either amend, reinterpret, or repeal Section 230. The conservative Media Research Center’s (MRC’s) Free Speech Alliance (of which LifeSiteNews is a member) is currently working on gathering as many public comments to the Federal Communications Commission (FCC) as possible urging the commission to review how Section 230 is currently interpreted and applied.

The effort is meant to help support an executive order President Donald Trump signed in May, aimed at tweaking how federal agencies interpret and enforce Section 230. The order essentially directs the FCC to propose an administrative rule that would “spell out what it means for the tech giants to carry out their takedown policies ‘in good faith,’” national security attorney Stewart Baker explained.