Justice Clarence Thomas Calls for Supreme Court to Reevaluate ‘Proper Immunity’ for Big Tech

- LAW & CRIME - ELURA NANOS - MAR 7, 2022 -

Associate Justice Clarence Thomas sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

In a statement on the Supreme Court’s denial of certiorari in Jane Doe v. Facebook, Justice Clarence Thomas urged the justices to “address the proper scope of immunity under §230” available to internet companies.

Calls to “repeal Section 230” have become a rallying cry for conservatives who argue, as petitioners did, that §230 “has strayed far from its origins and text,” and that Big Tech needs to be reined in.

The law is a section of the Communications Decency Act of 1996 which shields internet companies acting as intermediaries from liability based on what users post. Under the current version of §230, platforms such as Facebook and Twitter are not “publishers,” and are not responsible for defamation or similar claims based on user-created content that violates the law.

The case presented to SCOTUS involved an adult male sexual predator who used Facebook to lure a 15-year-old girl to a meeting. The predator repeatedly raped and beat the girl, then trafficked her for sex. The girl, known in court documents only as “Jane Doe,” escaped and sued Facebook in Texas state court, claiming that Facebook violated the Lone Star State’s anti-sex-trafficking statute and committed various common law offenses.

Doe’s statutory sex-trafficking claim was permitted to go forward, but the Texas Supreme Court dismissed Doe’s common law claims, ruling that they were barred by §230. Justice Thomas agreed that SCOTUS’s refusal to consider the case was correct — but only because of a procedural issue. Thomas was quick to clarify that he believes it is time to reconsider the protections granted by §230; but because the Texas Supreme Court allowed Doe’s sex-trafficking claim to proceed, the court’s ruling was not sufficiently “final” for SCOTUS to review.


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