LOS ANGELES—Section 230 — the “First Amendment of the Internet” that grants a legal basis for free expression online — is already under attack from both parties in Congress, the White House and the Department of Justice. Now the 24-year-old law appears to be facing yet another threat, this time from the Supreme Court.
In a statement published by SCOTUS on Tuesday, Justice Clarence Thomas noted that Section 230 of the 1996 Communications Decency Act was adopted as law in an era when most of today’s most widely-used internet platforms did not exist, and that in subsequent years, the law may have been interpreted too broadly by lower courts. Thomas suggested that “paring back” the law’s protections for internet platforms may now be “more appropriate for an Internet-driven society.”
There are numerous pieces of proposed legislation in Congress that would “pare back” Section 230 — and that would have a direct impact on the adult industry in particular. According to a recent report by Slate.com, the EARN IT Act — authored by South Carolina Republican Lindsey Graham — would allow and even encourage online platforms to unilaterally censor and remove porn. But the law would punish those same platforms for removing such politically extremist content as Holocaust denial, and posts promoting white supremacist ideology.
Under the current provisions of Section 230 — as authored by Democratic Oregon Senator Ron Wyden and Minnesota Republican House Rep Chris Cox — platforms are not legally liable for content posted by users, though they are free to remove content that violates the platforms’ own rules.
But Thomas claims that some lower court rulings have also granted immunity for content generated not by users, but by the platforms themselves.
“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,” Thomas wrote in his statement.
He published the statement to accompany the high court’s refusal to hear a case, Malwarebytes Inc. v. Enigma Software Group, in which a lower court decided that Section 230 does not protect platforms who remove content by business competitors, for “anticompetitive” reasons.
Generally when the court declines to grant “certiorari” — that is, when it declines to take up a case — it offers no explanation for the refusal. But occasionally justices will issue a statement offering thoughts on issues raised by the rejected case. Such statements are seen as indicators of how justices might rule if a similar case reaches the Supreme Court.
As Thomas noted in his statement, the Supreme Court has yet to accept a case involving Section 230.
Photo By Steve Petteway / Wikimedia Commons Public Domain
