back to article US Supreme Court Justice flames lower courts for giving 'sweeping immunity' to Facebook, YouTube, etc when it comes to harmful content

US Supreme Court Justice Clarence Thomas has unexpectedly weighed in on the debate over internet giants' legal protections from the consequences of user-posted content, arguing this litigation shield should be removed or limited in future. In a statement [PDF] attached to the top court’s case list, where a related case citing …

  1. Jim Mitchell Silver badge

    Does this kind of "statement" have any actual legal weight?

    1. John Gamble

      It can be viewed as a warning shot (I'm viewing it this way; whether actual Supreme Court justices and scholars view it this way is a different matter).

      There are eight other justices that may or may not agree though, and of course legislative action may change everything before any argument reaches the court.

      1. BillG
        Mushroom

        Do It Right

        Yes it is a warning shot. It's a message to the lower courts to start interpreting Section 230 correctly or the Supreme Court will do it for you. Section 230 is meant to provide online content providers like Facebook & Twitter legal immunity from member's posted content & actions. Section 230 does not provide the same protection to content & actions taken by the content provider itself, including posts by officers of the company posting on their own website as well as moderation actions. The lower courts have been providing broad immunity by misinterpreting Section 230 to include all actions taken by the content providers. What Judge Thomas is doing is warning the lower courts to interpret Section 230 properly, as it is written, and not play textual words games to grant corporate immunity where it does not belong.

        The reason for the warning & not ruling from the bench is nowadays it's not good for a judge's reputation to have the Supreme's overturn your decision - for example, it gives ammunition to defense attorneys. They're probably teased by their fellow judges too ("Hey, Walter! Wanna overturn those pancakes for me? Hahahaha!").

        It also affects the stocks of the affected companies if the Supreme's are forced to set a hard precedent by interpreting Section 230 correctly, as opposed to having an appellate court rule against the same company.

        1. MachDiamond Silver badge

          Re: Do It Right

          "What Judge Thomas is doing is warning the lower courts to interpret Section 230 properly, as it is written, and not play textual words games to grant corporate immunity where it does not belong."

          That sounds more like a very reasonable stance. If courts were to impose the requirement that every web site that features user content has to review and fact check submissions, only the largest entities such as FB and the like will have the resources. Startups and smaller sites would not be able to afford the review staff. It would also bring in the requirement of defining what sites have to do this.

          If I built a commentary web site of a couple of hundred co-owners, would I, as the head of the site, have to censor posts or would a law that required that fall afoul of the US right to free speech? I can certainly remove or refuse to post any submitted content I like as the main curator, but the government couldn't impose censorship. People fail to understand that in the US, the Freedom of Speech restricts laws that impede it, but it doesn't apply to private parties. If FB wants to delete any posts or forums about a certain subject, they are able to do that. On the other hand, the government can impose a requirement that harmful lies and misinformation must be removed when brought to their attention. An opinion is one thing, but to say that there was never a mass murder of Jews by the Nazis is contrary to well documented fact.

          A good approach might be something akin to the DMCA take down notification where dishonest content can be removed unless the author can show it's accurate or purely opinion.

    2. Imhotep Silver badge

      No legal weight, but it does send a message to the lower courts on what might happen if one of their decisions is appealed.

      And as Mr McCarthy points out, it might be seen by congress as raising an issue that may need to be addressed in legislation.

      1. diodesign (Written by Reg staff) Silver badge

        "that may need to be addressed in legislation"

        Or rather, may be addressed by the Supreme Court. In other words, if Congress can't figure out how to write and pass an updated communications law, the Supremes could mull it over and set a precedent. Justice Thomas didn't think the Malwarebytes case was suitable for that purpose.

        C.

        1. Rol Silver badge

          Re: "that may need to be addressed in legislation"

          If Mr Smith posts something on social media, that is later found to break the rules, then it is Mr Smith who must be answerable to the courts. If it then turns out that the Mr Smith who did the posting cannot be traced, because he never existed, then it is the social media platform that must answer to the courts, for not taking sufficient steps to confirm their users are genuine.

          It's that simple!

          Once the likes of Facebook have been fined several hundred million for the many instances where rogue operators have been allowed to anonymously infiltrate society with their warped dribbling, then the likes of Facebook will have no choice, but to clean their act up.

          1. Claptrap314 Silver badge

            Re: "that may need to be addressed in legislation"

            Would you allow the publication of the Federalist Papers via these platforms?

          2. Snake Silver badge

            Re: "that may need to be addressed in legislation"

            But Facebook does already try to verify its users... at least, when they really want to. Ask the people who had to sent in copies of their driver's license after Facebook suspended their account due to questions regarding this.

            The problem just seems to be that they apply the verification requirement wily-nilly, demanding ID verification when questions of sexually-open posts come up (Facebook has been suspending accounts of adult film stars and service providers) but not questionably-sourced political content (because nobody complains about editing honestly open sexual beings (Think of the children!) but editing rabid political lies is CENSORING!!)

    3. Doctor Syntax Silver badge

      It can and probably will be cited in arguments in other cases and subsequently in the rulings of the courts in those cases.

  2. Falmari Silver badge
    Megaphone

    Publishers?

    “By not acting as publishers, they retain their Section 230 immunity from legal action, and thus the companies would prefer to keep it that simple.”

    But surely, some like Facebook are acting as publishers. For example, if I submitted a letter to a newspaper’s readers letters page that was hate speech and they printed it they would be deemed the publisher of it. Facebook is no different they get paid for what is on their site through advertising the more views the more they get paid.

    If they charged the user for the page they can argue like hosting companies that they are not a publisher. Facebook makes it money from the content a hosting company makes it money from the space it rents.

    1. ZenCoder

      Re: Publishers?

      The publisher vs platform thing is 100% a myth. Techdirt has a good article debunking common 230 related myths.

      https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act.shtml

      1. LDS Silver badge

        Re: Publishers?

        Yes, the problem is exactly how 230 is written - so FB, Google & C. can abuse it at their will.

        The OP has a point - it is needed to define a clear boundary between when is the sole responsibility of the user creating the content - and then how the user can be made really responsible about it - and when the entity profiting from them has also a responsibility - especially when it promotes knowingly harmful or illegal contents for bigger profits. or when the contents are the very "raw material" processed to deliver the company "product".

        There's a big difference between 1996 and 2020, a Usenet group and Facebook.

        In other sectors no intermediary has a so broad exemption.

        1. Anonymous Coward
          Anonymous Coward

          Re: Publishers?

          Its also worth noting that (at least in the UK) laws like libel in the print media hold everyone involved in the distribution of the material liable - everyone "from the journalist who writes the story, the editor who decides to run the story all the way to the paperboy who posts the newspaper through your letterbox". That's why, I think, in the past when Private Eye used to be regularily sued for libel that in reality the case would normally cite the distributers like WHSmiths and John Menzies as defendants.

          Also, worth noting that in the Lord McAlpine's case against Sally Bercow and her libelous tweet that, while Twitter were ok, he was able to include all the lefties who had gleefully re-tweeted the original message in the case and after he won his lawyers wrote to them asking them if they would like to make a charitable donation of a sufficient size relative to their twitter "status" instead of coming to court to discuss damages with a judge.

          1. Imhotep Silver badge

            Re: Publishers?

            In the US there is a much higher standard to hold the news media liable for liable. I believe this dates back to a ruling in the 60s, and is that you would also have to prove malicious intent.

            There are rumblings about changing this.

            1. martinusher Silver badge

              Re: Publishers?

              There's also a 'public interest' exception.

              We don't want UK style libel laws in the US. It chills free speech.

        2. Jellied Eel Silver badge

          Re: Publishers?

          Yes, the problem is exactly how 230 is written - so FB, Google & C. can abuse it at their will.

          Yup, hence threats to re-write 230, redefine it by precedent/ruling, or just anti-trust investigations regarding new media. And also in the news regarding the Bidens. Or not, because the news, other than the NY Post seems to have decided to ignore it. But Twitter & Facebook chose to 'censor' or supress it, pending 'fact checking', which may or may not be partisan. Biden says it's a nothingburger, Trump threatens to re-do 230. Popcorn sales are up.

      2. Claverhouse Silver badge

        Re: Publishers?

        @TechDirt

        Very useful.

        Personally, I can't see why either speech needs suppressing --- and to forestall: how many time do you read direct incitement to kill ? [ or why it matters if you do ? I would ignore that call, and even if, say, some unfortunate American leader is shot by a latter day Fanny Kaplan, or John Wilkes Booth, the killing is morally on the killer, not the inciter ] --- or why those offering a platform to all are responsible for what the deranged masses say.

        .

        .

        Also, 'Hate Speech' is bunk.

        1. Chairman of the Bored

          Re: Publishers?

          @Claverhouse-

          No down vote because I am a major free speech proponent, but I do feel we need some limits. I'd say a man who incites murder is culpable. Extreme example- how many people did Hitler personally kill? Stalin? Mao? Pol Pot? My estimate is zero. But are they not culpable for the death of millions?

          I've got actual, literal, Nazis marching through my town. This is no longer a theoretical problem.

          1. Anonymous Coward
            Anonymous Coward

            Re: Publishers?

            I don't think you'd call that incitement. Incitement is to do with breaking the law. Commanding people with force of military or law behind you is I think something else.

            You may also have Communists in your town. The problem comes when they start doing things, not just believing things.

            1. Chairman of the Bored

              Re: Publishers?

              Well, in a town less than an hour from me, a Nazi killed one person and injured nineteen more by ramming them with a car.

              I can walk downtown right now and more likely than not find some swingin' dick walking around with an assault rifle and more crap on his vest than I carried in Iraq.

              Now we have plots to kidnap and/or assassinate Governors.

              So, yeah, we've got issues.

              1. Robert Grant Silver badge

                Re: Publishers?

                Everywhere does :)

        2. Version 1.0 Silver badge

          Re: Publishers?

          But "Hate Speech" generates lots of views and thus advertising revenue so the companies will always support "Free Hate Speech" because they are getting paid from it.

    2. John Brown (no body) Silver badge

      Re: Publishers?

      "For example, if I submitted a letter to a newspaper’s readers letters page that was hate speech and they printed it they would be deemed the publisher of it. Facebook is no different they get paid for what is on their site through advertising the more views the more they get paid."

      If you write to a newspapers letters page, it only gets printed if the letters page editor reads it and decides it's worthy of publication. If you write something on Facebook or similar, you press the button that publishes it. That's quite a significant difference.

      1. Falmari Silver badge

        Re: Publishers?

        That is a very good point have an up vote. But is not Facebook acting like an editor with the decision on Holocaust denial. Also Facebook decides what to push to other users, is this not acting like an editor?

        1. John Brown (no body) Silver badge

          Re: Publishers?

          To some extent, yes, but they are "editing" after the fact. Which should keep the lawyers in new yachts for a while.

    3. diodesign (Written by Reg staff) Silver badge

      Re: Publishers?

      FWIW I've taken that sentence out as... it was added during the edit to summarize the situation and may have missed the mark. The piece is fine without it.

      C.

  3. Gene Jones

    Fingers crossed

    They all censor content which should put them under the publisher umbrella. All along they've claimed they only provide the platform for publishers.

    Traditionally it has been publishers who censor content providers.

    1. John Brown (no body) Silver badge

      Re: Fingers crossed

      Many of these "publishers" claim rights to everything you post on their platforms. With rights comes responsibility.

  4. Claverhouse Silver badge
    Stop

    'Communications Decency Act'

    Just... cringe...

    1. Version 1.0 Silver badge
      Joke

      Re: 'Communications Decency Act'

      That's a typo, it was originally called the Communications Decent Profits Act ... but they thought that getting abbreviated to the CDPACT law would give the game away.

  5. Ashto5

    Publishers or Not

    I don't understand the problem here.

    The platform allows users to self publish material on THEIR platforms.

    They ARE a publisher.

    Seems real simple, now time for the lawyers to jump in and start grabbing cash for total BS arguments.

    If I wrote an article and sent it into the Telegraph or the Times and they published it, THEY would also carry liability, what's the difference ?

    1. genghis_uk Silver badge

      Re: Publishers or Not

      The difference is that if the newspaper published your letter, it is an editorial decision. Note: The analogy is not quite correct - it is more like suing the post office for delivering a letter you do not like. If anyone posts on their own site they are liable for their posts - I can post any old crap here and El Reg cannot be sued in the US for it but diodesign could be if it was found to upset someone. The liability rests with the writer not the host delivering the message.

      To be the same as a newspaper, every post on every site would ned to be read and moderated. This was seen as impossible at the scale that posts are created (even in the 1990's). FB and Twitter are always mentioned but the Reg is also covered as are you if you have a site with comments. Google could be sued over their search results, free speech would be lost as it would become whatever the moderators said it should be - a bit like all newspapers are biased along the lines of their editor ... Don't take my word for it - From Ron Wyden, co-author of S230

      " Without Section 230, sites would have strong incentives to go one of two ways: either sharply limit what users can post, so as to avoid being sued, or to stop moderating entirely, something like 8chan — now operating under the name 8kun — where anonymous users can post just about anything and speech supporting racism and sexism is common.

      I think we would be vastly worse off in either scenario. Just look at Black Lives Matter and the protests against police violence over the past week as an example. The cellphone video that captured the officer kneeling on George Floyd's neck spread across social media platforms — and it's the reason Americans learned about his unjust killing in the first place. So many of these cases of unconscionable use of force against black Americans have come to light as a result of videos posted to social media.

      In a world without 230, I cannot imagine that Facebook or Twitter would allow posts about police violence that could possibly be defamatory. These horrible injustices would never get the public attention they deserve. And accountability would be even less likely. "

      This brings us to moderation - a site does not have to host your speech if it violates the community rules. They are usually fairly relaxed about this, partly due to the moderation at scale issue above but if you post hateful, bigoted speech you should not be very surprised if the post gets removed. This is not censorship(!!) despite what Trumps followers may think - Twitter and Facebook are not saying you cannot post vile rhetoric, they are saying they will not host it. Feel free to put it somewhere else though.

      It has been mentioned before but it obviously got missed - a great primer for s230

      https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act.shtml

      I saw someting the other day that said S230 tries to remove most of the bad stuff while attempting to preserve as much of the good stuff as possible - this sums it up nicely. Nothing is 100%, especially with the scale of FB, Twitter etc. but you can certainly aim towards it.

      1. martinusher Silver badge

        Re: Publishers or Not

        Thanks for the explanation.

        I think part of the prolbem is the presumption of anonymimity -- everyone hides behind a handle thinking that it somehow shields them from the consequences of their speech. The attacks on 230 are really just blame shifting; the Internet companies try to maintain a balance but the consequences are they are likely to end up pleasing nobody. (A good sign?) Clarence Thomas should also bear in mind that the reason why a lot of conservative speech is censored is not because of 'left wing bias' but because a lot of is crass, false and often abusive. Proper conservative speech from recognized figures is never censored but those people are increasingly chased to the margins by a mob that claims to espouse their philosophy but refuses to understand it.

        The current situation we're in (in the US at least) is caused by a collsion between a ruling philosophy and the people that it wants to rule. You only have balance and stability when the people ruling a country do this with the consent of the majority of that population. Conservatives recognized this 150 years ago in the UK, they figured they needed a balance between a guiding philosophy that benefits a minority at the expense of a majority and the pressures of that majority for a better deal. If that balance is disturbed -- a consequence of a shortsighted 'winner take all' mindset -- then people become cynical, unruly and even revolutionary. Trying to rule under these ciictumstances requires either outright tyraany or the stretching of the fabric of reality to grostesque shapes in an attempt to convnice everyone that two plus two really does make five ("Because we said so"). This is ultimately a losing strategy; complaining about people criticising it won't improve it.

      2. MachDiamond Silver badge

        Re: Publishers or Not

        "The cellphone video that captured the officer kneeling on George Floyd's neck spread across social media platforms — and it's the reason Americans learned about his unjust killing in the first place."

        If you followed up on that, you would know that the medical examiner found 3x the lethal dose of Fentanyl and Meth in his system and no significant damage to the neck. The drugs are in addition to known severe health issues. The video was also edited in a way that slanted opinion. The officer kneeling on his neck for such a long time looks very bad, but it wasn't the cause of death. Mr. Floyd was unlikely to live out that day in any case.

        In the light of the full length video, autopsy report and other evidence, the initially published video was inflammatory by telling a story that was so incomplete that along with words around it, it told a big lie. Are there bad cops? Yes. Is there a pattern of white police killing black people? There doesn't seem to be. That's my opinion. I might be swayed the other way if the people killed also included doctors, lawyers, professionals, tradespeople, shop owners, etc. Maybe there are, but the news is only showcasing stories involving people with fairly damning records. The Breonna Taylor case being an exception. I don't feel that early morning raids, whether they knock or not, are justified in all but a very few cases. Too often there are cases of police going to the wrong house or acting on information months old on the whereabouts of a suspect. Judges are to blame for this as well for signing the warrants with such poor information.

    2. genghis_uk Silver badge

      Re: Publishers or Not

      If I called you a liar and a fraudster (I'm not!!) - would you sue El Reg for hosting the speech or me for saying it?

  6. fidodogbreath Silver badge

    The new cold war

    The ongoing at-scale manipulation of crowdsourced news, largely (but not exclusively) by Russia and China, has really changed the landscape. This weaponization of local biases and divisiveness provably influenced the 2016 US election and the Brexit vote, to mention just the two highest profile, high-stakes examples.

    In the US, it contributed to electing Trump, who has all but blown up NATO and other longstanding alliances. He is also proving to be a wannabe dictator who is actively working to undermine what's left of our democracy; many thoughtful people on both sides are convinced that if Trump wins or steals 2020, it will be the last meaningful US election. Weakening the US and the post-WWII alliances serves Russia's interests and undermines those of the US and our now-distrustful allies.

    The merits of Brexit are not for me to opine on, but discord and economic disruption between the UK and the EU clearly serves Russia's interests.

    I don't pretend to know what the answer is, but the current situation is not sustainable.

    1. Claptrap314 Silver badge

      Re: The new cold war

      <sigh> We now know that then-president Obama approved of the Clinton-Kremlin developed dossier and you still push this line. Putin doesn't give a **** about who is president. He's playing a long game to limit America's ability to act internationally by undermining the confidence that the population has in the government.

      YES, the troll farms supported Trump. NO, they had little direct effect on the election. They have had a significant effect to undermine the perception of the legitimacy of his victory, and THAT was the the goal. Likewise the infamous dossier. Had Clinton won, it would have similarly tainted the victory.

      The Russians do not merely play chess. They also study Sun Tzu.

      China is more about directly affecting policy. Trade regulations, isolating Taiwan, etc.

      1. fidodogbreath Silver badge

        Re: The new cold war

        We now know that then-president Obama approved of the Clinton-Kremlin developed dossier and you still push this line.

        Ummm...I didn't say anything about a dossier. Not sure where you got that...

        Putin doesn't give a **** about who is president.

        That makes no sense at all. Russia explicitly sees NATO as a direct threat. Any president who will push isolationist policies that undermine NATO is advancing Russia's interests, whether intentionally or not. Clearly Putin cares who is elected US president.

        He's playing a long game to limit America's ability to act internationally by undermining the confidence that the population has in the government.

        I agree with you here. But I would add that Russia also seeks "to limit America's ability to act internationally by undermining the confidence" that US allies have in the US government. When major Western democracies (not just the US) and their allies are in disarray, Russia's interests are advanced.

        NO, they had little direct effect on the election.

        Trump won Wisconsin, Pennsylvania, and Michigan -- 46 electoral votes -- by a combined total of 77,744 voters, less than 0.7%. Not saying that Russia made that all happen, but in an election that close it's hard to make a blanket statement that disinformation campaigns did not make a difference. And, as you correctly note, the narrow margins would serve to undermine the legitimacy of either Trump or Clinton.

        Meanwhile, back at the article: Thomas' ruminations about whether Facebook et al should have blanket immunity from policing the content of their platforms are a valid concern -- albeit one better addressed by legislation than judicial intervention. The disinformation campaigns that have been run on (anti)social media platforms have clearly played a role in Western elections. Even if the only result is stirring up divisiveness in Western societies, disinformation campaigns are a threat that we ignore at our peril.

  7. MadAsHell

    Prospective over-ruling

    IIRC, the UK House of Lords, in the obiter for Siddaway, gave warning that, given the same facts in a later case, they would deliver the contrary judgment. I think it was called prospective over-ruling. Give the legally correct judgement now, but warn that the current interpretation of the law (consent and the degree of informing that lead to that consent) was no longer good enough and that it would be effectively reversed in the future, creating a new binding precedent.

    It's often better than ham-fisted drafting by legislators (e.g. 1967 Theft Act, really badly drafted, didn't cover so-called joy-riding => hence new offence TWOC).

  8. Phil Koenig

    Careful what you wish for..

    As bad as it has been in recent years where giant social media platforms have become megaphones for all sorts of 100% false and manipulative garbage, the alternative of having corrupt politician-du-jour decide what stays or what goes is probably even worse.

    I've watched this debate going on for decades now, and politicians didn't care all that much one way or the other until they discovered occasional restrictions on their own armies of disinfo bots and nonsense-posting political provocateurs.

    If any changes are going to be made they need to be done cautiously and with due consideration from people who understand the big picture cultural implications (and what is or is not feasible from a technical/platform standpoint), not idiotic self-serving politicians. At the very least some sort of community standards or board with a diverse membership should be involved in setting standards.

    Far easier said than done.

    Especially considering the fact that some degree of anonymity is still important for any sort of dissident. Nowadays you cannot even attend a political protest without being surveilled, face-recognition-matched, DNA-collected, GPS-tracked, etc etc.

  9. Anonymous Coward
    Anonymous Coward

    What is their real game plan here

    The publishing without liability by Twitter, Youtube and Farcebook is exactly what helped more than anything else, the morbidly obese orange clown make up guy get to where he is, and judging by how much dis-information and libel, his adds, tweets and posts he is pumping out now, it may well help him survive this election.

    I can't believe these clowns want to lose that.

    My guess is the implementation of this, once it is passed, is that some administration appointed Czar will be the judge and jury of what crosses the line, handing them complete censorship of the Internet.

  10. MachDiamond Silver badge

    I agree with Judge Thomas

    I think Judge Thomas has got it right. If the publishing site originates the story, it's their responsibility. If it's a user submission, the site has very little. What can change that is if the site curates, promotes or features user content in some way.

    It's in the best interest of sites to track down and remove stupid things like advocating drinking bleach to cure a disease. They should also go after false information that regularly makes the rounds on various topics. People claiming that vaccines are being used by the "government" to sterilize certain groups of people is a far out statement with very damaging potential and sounds more like propaganda that's ofter heard in Africa when humanitarian groups try to quash diseases like small pox and measles. Extraordinary claims require extraordinary proof. All of us need to be cynical about what we read. More so on social media and slightly less if it's a peer-reviewed article in Nature.

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