Justice Thomas Goes to War with Facebook: Time to Sweep Away Big Tech Immunity


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Supreme Court Justice Clarence Thomas speaks at The Heritage Foundation on Oct. 21, 2021, in Washington, D.C. The Facebook logo is seen on a cellphone screen in Moscow on Nov. 19, 2021.

Supreme Court Justice Clarence Thomas speaks at The Heritage Foundation on Oct. 21, 2021, in Washington, D.C. The Facebook logo is seen on a cellphone screen in Moscow on Nov. 19, 2021. (Drew Angerer / Getty Images; Kirill Kudryavtsev – AFP / Getty Images)

 By Richard Moorhead  March 8, 2022 at 3:30pm

Supreme Court Justice Clarence Thomas is calling for a review of Big Tech’s legal protections.

Thomas released a statement on Monday after the Supreme Court declined to take up a lawsuit from a woman who had been sexually trafficked using Facebook.

Thomas concurred with the court’s decision not to review the case but said the Supreme Court should consider a case pertaining to Section 230 protections.

Very interesting statement from Justice Thomas today. He’s pleading for an “appropriate” case to be brought to SCOTUS to finally get rid of the “sweeping immunity” that lower courts have falsely ascribed to Section 230. Implied message is that he has five justices on his side. pic.twitter.com/LBNOYwfBFO

— Hans Mahncke (@HansMahncke) March 8, 2022

Section 230 of the Communications Decency Act provides social media platforms with immunity from civil or criminal liability for user-generated content.

“It is hard to see why the protections [Section 230] grants publishers against being held strictly liable for third parties’ content should protect Facebook from liability for its own ‘acts and omissions,’” Thomas argued in the Supreme Court’s denial of certiorari in Jane Doe v. Facebook.

“I … concur in the Court’s denial of certiorari. We should, however, address the proper scope of immunity under [Section 230] in an appropriate case.”

Amid partisan “fact-checks” and the pervasive censorship of conservatives on the part of Big Tech companies, some have questioned Section 230.

The law has formed the basis for an internet in which a small handful of tech giants control the majority of online speech.

Big Tech’s critics have also pointed to Section 230 as the basis for Silicon Valley giants creating uncontested monopolies. Google, for example, grabs 85 percent of all internet searches.

The removal of Section 230 protections could fundamentally change the internet as we know it, although it’s unclear if this would lead to more free speech or less.

Some have proposed regulating Big Tech giants as public utilities, providing the same right to access that the average American has to electric and other utility companies.

In some of his previous statements, Thomas has shown himself willing to challenge the legal basis of Section 230.

He has compared Big Tech giants to companies regulated as “common carriers.”

It’s unclear how the conservative court would rule in potential litigation redefining the scope of Section 230 protections.

Richard Moorhead is a conservative journalist, a graduate of Arizona State University, service member, and guitar player.

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