Clarence Thomas Learned Nothing From The Mess He Helped Create Regarding Section 230, Blogs Ignorantly About 230 Yet Again

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from the get-a-blog,-clarence dept

Have we considered giving Supreme Court justices their own blogs in which they can vent their ill-informed brain farts, rather than leaving them to use official Supreme Court order lists as a form of a blog?
Justice Clarence Thomas has been the absolute worst on this front, using various denials of certiorari on other topics to add in a bunch of anti-free speech, anti-Section 230 commentary, on topics he clearly does not understand.
Thomas started this weird practice of Order List blogging in 2019, when he used the denial of cert on a defamation case to muse unbidden on why we should get rid of the (incredibly important) actual malice standard for defamation cases involving public figures.
Over the last few years, however, his main focus on these Order List brain farts has been to attack Section 230, each time demonstrating the many ways he doesn’t understand Section 230 or how it works (and showing why justices probably shouldn’t be musing randomly on culture war topics on which they haven’t actually been briefed by any parties).
He started his Section 230 brigade in 2020, in which he again chose to write his unbidden musings after the court decided not to hear a case that touched on Section 230. At that point, it became clear that he was doing this as a form of “please send me a case in which I can try to convince my fellow Justices to greatly limit the power of Section 230.”
Not having gotten what he wanted, he did it again in 2021, in a case that really didn’t touch on Section 230 at all, but where he started musing that maybe Section 230 itself was unconstitutional and violated the First Amendment.
He did it again a year later, citing his own previous blog posts.
Finally, later that year, the Supreme Court actually took on two cases that seemed to directly target what Thomas was asking for: the Gonzalez and Taamneh cases targeted internet companies over terrorist attacks based on claims that the terrorists made use of those websites, and therefore the sites could be held civilly liable, at least in part, for the attacks.
When those cases were finally heard, it became pretty obvious pretty damn quickly how ridiculous the premise was, and that the Supreme Court Justices seemed to regret the decision to even hear the cases. Indeed, when the rulings finally came out, it was something of a surprise that the main ruling, in Taamneh, was written by Thomas himself, explaining why the entire premise of suing tech companies for unrelated terrorist attacks made no sense, but refusing to address specifically the Section 230 issue.
However, as we noted at the time, Thomas’ ruling in Taamneh reads like a pretty clear support for Section 230 (or at least a law like Section 230) to quickly kick out cases this stupid and misdirected. I mean, in Taamneh, he wrote (wisely):
And, I mean, that’s exactly why we have Section 230. To get cases that make these kinds of tenuous accusations into legal claims tossed out quickly.
But, it appears that Thomas has forgotten all of that. He’s forgotten how his own ruling in Taamneh explains why intermediary liability protections (of which 230 is the gold standard) are so important. And he’s forgotten how his lust for a “let’s kill Section 230” case resulted in the Court taking the utterly ridiculous Taamneh case in the first place.
So, now, when the Court rejected another absolutely ridiculous case, Thomas is blogging yet again about how bad 230 is and how he wishes the Court would hear a case that lets him strike it down.
This time, the case is Doe v. Snap, and it is beyond stupid. It may be even stupider than the Taamneh case. Eric Goldman had a brief description of the issues in this case:
In a new post, Goldman makes even clearer just how stupid this case is:
See? It’s just as, if not more, stupid than the Taamneh case. It’s yet another “Steve Dallas” lawsuit, in which civil lawsuits are filed against large companies who are only tangentially related to the issues at play, solely because they have deep pockets.
The historical posture of this case is also bizarre. The lower courts also recognized it was a dumb case, sorta. The district court rejected the case on 230 grounds. The 5th Circuit affirmed that decision but (bizarrely) suggested the plaintiff seek an en banc review from the full contingent of Fifth Circuit judges. That happened, and while the Fifth Circuit refused to hear the case en banc, seven out of the fifteen judges (just under half) wrote a “dissent,” citing Justice Thomas’s unbriefed musings, and suggesting Section 230 should be destroyed.
Justice Thomas clearly noticed that. While the Supreme Court has now (thankfully) rejected the cert petition, Thomas has used the opportunity to renew his grievances regarding Section 230.
It’s as wrong and incoherent as his past musings, but somehow even worse, given what we had hoped he’d learned from the Taamneh mess. On top of that, it has a new bit of nuttery, which we’ll get to eventually.
First, he provides a much more generous to the plaintiff explanation of what he believed happened:
Again, given his ruling in Taamneh, where he explicitly noted how silly it was to blame the tool for its misuse, you’d think he’d be aware that he’s literally describing the same scenario. Though, in this case it’s even worse, because as Goldman points out, Snap is prohibited by law from monitoring the private communications here.
Thomas then goes on to point out how there’s some sort of groundswell for reviewing Section 230… by pointing to each of his previous unasked-for, unbriefed musings as proof:
And it’s not like he’s forgotten the mess with Taamneh/Gonzalez, because he mentions it here, but somehow it doesn’t ever occur to him that this is the same sort of situation, or that his ruling in Taamneh is a perfect encapsulation of why 230 is so important. Instead, he bemoans that the Court didn’t have a chance to even get to the 230 issues in that case:
Except no. If the Taamneh/Gonzalez cases didn’t let you get to the 230 issue because the cases “would have failed on the merits regardless,” the same is doubly true here, where there is no earthly reason why Snap should be held liable.
Then, hilariously, Thomas whines that SCOTUS is taking too long to address this issue with which he is infatuated, even though all it’s done so far is have really, really dumb cases sent to the Court:
And that takes us to the “new bit of nuttery” I mentioned above. Thomas picks up on a point that Justice Gorsuch raised during oral arguments in the NetChoice cases, and I’ve now seen being pushed by grifters and nonsense peddlers. Specifically, that the posture that NetChoice took in fighting state content moderation laws is in conflict with the arguments made companies making use of Section 230.
Here, we’ll let Thomas explain his argument before picking it apart to show just how wrong it is, and how this demonstrates the risks of unbriefed musings by an ideological and outcomes-motivated Justice.
So, the short answer is, yes, this is exactly the state of affairs that Section 230 demands, and the authors of Section 230, Chris Cox and Ron Wyden, have said so repeatedly.
Where Thomas is getting tripped up, is in misunderstanding whose speech we’re talking about in which scenarios. Section 230 is quite clear that sites cannot be held liable for the violative nature of third-party expression (i.e., the content created by users). But the argument in Moody was about the editorial discretion of social media companies to express themselves in terms of what content they allow.
Two different things in two different scenarios. The platforms are not “arguing the opposite.” They are being specific and explicit where Thomas is being sloppy and confused.
Section 230 means no liability for the third party uses of the tool (which you’d think Thomas would understand given his opinion in Taamneh). But Moody isn’t about liability for third party content. It was about whether or not the sites have the right to determine which content they host and which they won’t, and whether or not those choices (not the underlying content) is itself expressive. The court answered (correctly) that it was expressive.
But that doesn’t change the simple fact that the sites still should not be liable for any tort violation created by a user.
Thomas is right, certainly, that more such cases will be sent to the Supreme Court, given all the begging he’s been doing for them.
But he would be wise to actually learn a lesson or two from what happened with Taamneh and Gonzalez, and maybe recognize (1) he shouldn’t spout off on topics that haven’t been fully briefed, (2) there’s a reason why particularly stupid cases like this one and Taamneh are the ones that reach the Supreme Court and (3) that what he said in Taamneh actually explains why Section 230 is so necessary.
And then we can start to work on why he’s conflating two different types of expression in trying to attack the (correct) position of the platforms with regards to their own editorial discretion and 230 protections.
Companies: snap
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from the paging-babs dept

Here we go again. The Streisand Effect has become so noticeably prevalent these days that I quite often hear the term being discussed in all manner of media. Hell, I came across it on a local Chicago sports radio broadcast a couple of weeks back. If the term and its implications aren’t being taught in business schools at this point, it almost certainly should be.
I say that because it seems there are still quite a few people out there who need the education. The latest unintentional student being educated is Taylor Morrison, a large homebuilder based in Arizona, but with development projects in 11 states. Taylor Morrison is attempting to get state regulators to take punitive action on Cy Porter, a home inspector who has built for himself with a decent social media following of his work.
And here’s where it gets weird. It was Porter that first reached out to Taylor Morrison when he discovered some issues at one of their home developments. From there, the company responded to him and, for a period of time, the two sides had a dialogue going that seemed amicable. Then, for one reason or another, Porter was prevented from doing a home inspection on a Taylor Morrison home. He made one of his social media videos about the episode, and suddenly the interaction he was having with the company changed. And then, well…
Now, Porter has stated he thinks the complaint was only filed due to the negative nature of his most recent video about Taylor Morrison. And, frankly, I agree with him. All of this seems to have been triggered by that last video. Most of what Taylor Morrison is complaining about existed while the two sides were having more friendly conversations.
Now, surely Taylor Morrison was attempting to use this complaint to intimidate Porter into taking his videos about the company down out of fear. Were that indeed the goal, however, it seems to have backfired in true Streisand Effect Fashion. For starters, Porter is not taking any videos down, nor is he ceasing to put new videos up. He has said he has work booked out for longer than the next calendar year and he isn’t going to change a thing about his social media presence.
And, of course, here we all are talking in a much wider and broader way about Taylor Morrison in a negative way and in a way that brings even more attention to Porter’s videos. I wonder just how many more views those videos about Taylor Morrison have gotten since the complain was filed. I don’t know the answer as of this writing, but I am certain that the answer is not “zero.”
So enjoy all the extra attention you are getting by trying to silence some online criticism, Taylor Morrison. Here, as they say, endeth the lesson.
Companies: taylor morrison