U.S. Supreme Court warns of limitations to Section 230 platform indemnity [pdf] | Hacker News Reader

U.S. Supreme Court warns of limitations to Section 230 platform indemnity [pdf]

supremecourt.gov

43 pointshenriquez38 comments

The Supreme Court isn't warning anyone of anything. The only opinion in here belongs to Justice Thomas and Justice Thomas alone. And it has as much legal significance as his solo dissents in actual cases -- which is to say, practically none whatsoever.

Flagging for title change.

For whatever it's worth, I disagree. There's a dominant belief floating around that social media corporations are free to mass-manipulate, enjoying indemnity from the misdeeds of their users while restricting any user-generated content that disrupts their commercial or political narratives.

In reality this belief has not been tested by the U.S. Supreme Court, and now a representative from that very court is pre-emptively deconstructing all the prior legal basis for that belief existing. If this doesn't serve as a warning shot I'm not sure what does.

In my view, that balance is for Congress to decide (subject to the First Amendment), not the Court - and I'm frankly surprised that Justice Thomas -- a self-described "textualist" -- isn't giving more deference to social media's right not to republish views with which it disagrees.

In his opinion Justice Thomas explains why the law, as written by Congress, does not provide the degree of broad legal immunity that people think it does. He explains how past rulings in lower courts are interpretations of the "spirit" of the law, not the letter of the law. In that sense he is completely deferring to Congress.

No, Thomas is arguing that all of the cases he's cited were wrongly decided, even though many of those cases take textualist approaches to section 230.

In fact, his argument boils down to: these websites in these cited cases did things I consider immoral, so the fact that section 230 explicitly protects the providers in these institutes is wrong because these companies were somehow actually the publishers of the content on their website. Thomas never once supports his claim that the websites became publishers in any of the cases he cites.

In fact, Thomas is attempting to rewrite section 230, by trying to limit provider protections to just the safe harbor provided in section 230(c)(2).

He's expounding on why he agrees it was appropriate for the Court to deny the petition for writ of certiorari. Unlike for an opinion, they need not provide their reasoning in part or in full (or indicate concurrence) for their vote, however they may.

"I agree with the Court’s decision not to take up this case. I write to explain why, in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms." (pg. 13)

IANL but even single opinions by Supreme Court justices are often cited in other cases, and arguments. It’s a lot more than you think, but perhaps someone who is an actual lawyer can weigh in?

IAAL. Sure, they are cited, but their influential power is pretty weak at best.

Imagine you're a judge. If you come to a legal conclusion that directly contradicts a Supreme Court holding by quoting a dissent attached to the opinion instead of the Court's opinion, you're at grave risk of committing legal error and having your decision reversed by a higher court. So no judge in his/her right mind is going to do that.

If that were the case, that "you're at grave risk of committing legal error and having your decision reversed by a higher court" how would any decision be revisited or changed? It would follow that just becasue it's in a dissenting opinion does not mean it's the wrong decision. Stare decisis seems to only exist in textbooks.

Just to add some points to this, Minersville School District v. Gobitis was overturned in favor of the dissenting opinion in West Virginia State Board of Education v. Barnette. Certainly the dissents in Plessy, Dred Scott, and Olmstead to name a few where the dissenting opinion later became the majority. Was it not an attorney that argued those points? They may have risked legal error, but that didn't negate that the argument was correct in the dissent.

An interesting quote:

>The year before Congress enacted §230, one court blurred this distinction. An early Internet company was sued for failing to take down defamatory content posted by an unidentified commenter on a message board. The company contended that it merely distributed the defamatory statement. But the company had also held itself out as a family-friendly service provider that moderated and took down offensive content. The court determined that the company’s decision to exercise editorial control over some content “render[ed] it a publisher” even for content it merely distributed

Judicial confusion is traditionally where SCOTUS steps in, and this article lays out a great deal of it.

I think we can expect a case clearly defining the limits of S230 in the not-too-distant future assuming direct legislative action changing the law is avoided.

Another:

>Paring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail. Moreover, States and the Federal Government are free to update their liability laws to make them more appropriate for an Internet-driven society

Immunity is an absolute thing - the lawsuit is dead in the water before before its merits are even considered. I find the reasoning here to be rather compelling.

What's your take on Facebook and Twitter censoring the New York Post article on Hunter Biden, including disabling the Post's Twitter account and prohibiting the article's URL from being shared, and how that would apply to what Justice Thomas is talking about here?

Section 230 would protect Facebook and Twitter as providers, since the law doesn't require them to pass along content received.

As written, the provider protection would only disappear if they are the creator of the content they make available, or if they altered that content, in which case they would be subject to the publisher rules.

The publisher rules would likely protect them as well and may even require them not to publish that content, since there's strong evidence that the content is defamatory: (1) a random computer service tech apparently received a computer from a guy he claims to be Hunter Biden (2) but he can't actually say the person was Hunter Biden, (3) the customer never came back for the computer, (4) the computer service guy was able to get into the computer and look at the email but the only evidence is a blurry screenshot,(5) the current possessor of the computer is unwilling to turn it over to any third party for forensic analysis showing that the email actually exists, and (6) the timelines in the purported email don't match reality based on confirmed travel by Hunter Biden or the person he supposedly met with.

Regarding point 5: The computer itself was turned over to the FBI under subpoena - the NYPO article has the receipts for that. The source for the story was the cloned contents of the hard drive, not the computer itself.

Regarding point 6: The defense used by the Biden campaign was very specific, to wit: we have reviewed Joe Biden's official schedules from the time and no meeting, as alleged by the New York Post, ever took place.*

If I were going to hold a covert meeting with foreign nationals that falls afoul of anti-corruption laws, I wouldn't be putting it on my official schedule either. This is not a defense to the accusation made.

I still want to see the raw emails. PDF screenshots aren't trustworthy, but the DKIM-signed messages with headers would confirm authenticity. Another thing that lends credence to the legitimacy of the hard drive are the photos taken from it - these too are in the NYPO article.

Regarding your response to point 5: No, the NY Post claims to have copies of these documents. But all they have are photos of these purported documents. Not the documents themselves, assuming they ever actually existed.

Also, there's a lot of stuff about the hard drive that doesn't add up. Hunter Biden lives in California but supposedly dropped off the laptop in Wilmington...on a weekend while he was seen attending parties in Los Angeles...with his (then) fiance. And the laptop was given to a legally blind tech shop owner who can't actually say who it was that dropped off the laptop. The tech shop owner then made a copy of the hard drive, and then gave it (the copy) to Guiliani rather than the FBI, and Guiliani kept it...rather than giving it to the Senate committee investigating the matter at the time. The FBI didn't purportedly get the hard drive until sometime earlier this year...after the Senate investigation had concluded without finding anything. If there actually had been something on the hard drive earlier this year, why didn't either of them turn it over to the FBI or the Senate committee earlier? None of this makes any sense, and a lot of it sounds made up.

And yet, that is precisely what two of the sitting President's children have actually done, as well as at least two of their spouses...

But on that note, at the time of the purported meetings (2014 and 2015), Hunter Biden was the son of the sitting vice president and would have been under Secret Service observation. And yet, the Secret Service doesn't have any records of such meetings, or even of Hunter Biden traveling to the cities where they meetings would have taken place.

I want evidence that any of the purported evidence is authentic. If this were any other administration, that wouldn't be an issue. But the Trump administration, and Giuliani especially, have such a long history of fraud that you simply can't trust anything they provide.

I wonder what the chances are that the "origin story" is completely bogus - a kind of non-judicial parallel construction.

The more pertinent question is, as you said, whether the info is authentic. The origin story, ultimately, isn't important assuming the information is confirmed.

It's a few days later now, but the FBI has since confirmed that they acquired the laptop as part of an investigation into a Russian disinformation campaign, not because they were investigating Hunter Biden. (They had already investigated him and found insufficient evidence of any wrongdoing.)

Guiliani has played a role as a conduit for multiple prior Russian disinformation campaigns. Guiliani also confirmed after our original discussion that he provided the purported emails to the NYPost because he knew they wouldn't verify their authenticity, and has since refused to provide the emails or the laptop to any other news agencies for forensic analysis.

The leading theory is now that Russian intelligence hacked Hunter Biden's social media accounts, stole a few pictures to plant on a laptop with the fake emails (to make the emails seem authentic) and they then provided the laptop to the tech shop owner. Their primary mistake, as previously noted: on the day that Hunter Biden supposedly dropped off the laptop, and the day before, he was seen partying in LA with his fiance, and could not physically have made it to Delaware in time to visit the tech shop that day.

It's now 13 days later, and the FBI, the DOJ, and the director of national intelligence have all independently confirmed that the laptop's contents are not part of a Russian disinformation scheme.

I stumbled upon this while going through the orders yesterday. Note that, Justice Thomas is talking in terms of how the law has been interpreted wrongly by providing concrete examples (his statement is definitely worth a read). The issue basically arises from previous judges trying to enact and enforce what they believe Congress' subjective intentions to be, not the text of the law they passed.

Unlike what many might fear, this is not a case of a Justice trying to enforce what he wishes the law were.

> judges trying to enact and enforce what they believe Congress' subjective intentions to be

Despite what some might have you believe, this is appropriate and well-accepted practice. Pretending not to know the policy intent is a dodge used by those who would rather undermine democratic will than engage in civic dialog.

I wish an explicit intent section was a required part of an article in the code of law.

It sometimes is. And in fact, it was part of section 230(b).

https://www.law.cornell.edu/uscode/text/47/230

This may be true in general, but TFA contains a number of references to cases in which protections given by the courts to large media firms clearly exceed the law that Congress wrote. Neither is this some dusty law haunting us from centuries ago. It was written in direct response to the Stratton Oakmont case from a year prior to its passing, and the cases under discussion started immediately upon that passing. None of the lobbyists who wrote this bill are dead. If someone is curious what they meant, they can be made available for discussion, given an appropriate fee.

Unfortunately, it really is Thomas trying to enforce what he wants the law to be rather than what the law actually says.

Thomas ignores the definition actually provided for "information content provider" and substitutes his own, because it's ideologically convenient for him to do so.

"information content provider" is defined in section 230 as "person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service", and as written, clearly contemplates the individual users can be information content providers for purposes of section 230 if they are providing information through the use of the Internet.

The law doesn't say that the provider has to pass-along any content it receives, only that it has to receive the content from another. Importantly, section 230's shield, as written, only restricts liability where the provider is also the creator of the content, such as when it alters content received (because in that context, it is the creator of the altered content).

But Thomas has decided that the law really means that you either post everything you get sent (unless it's illegal), or you don't get to exercise any editorial control over what shows up on your website at all unless it clearly falls within the filterable catgories of 230(c)(2) (i.e., objectionable content). But 230(c)(2) is just a safe harbor that explicitly delineates what is definitely protected provider activity, it isn't meant to be an exhaustive list of what is protected provider activity.

In fact, if you look at all the cases cited by Thomas as being wrong and actually read the decisions...you find that they are logically sound and based on technical interpretations of section 230 as actually written and not what Thomas fantasizes in his head.

TLDR: it's just Thomas being Thomas.

As a response, the FCC is moving to clarify Section 230.[1] It is unclear if they actually have the authority to do that.

[1] -https://twitter.com/AjitPaiFCC/status/1316808733805236226

They don't and it will be clarified by the courts whenever any of their "clarifications" are up vs precedent.

They probably do, but given the amount of time required for such regulations to be written, commented on and those comments analyzed and dealt with, and published to the FR before being effective, he would have to have the clarifying regulations ready by the end of next week in order for them to take effect before the next presidential term begins.

And then the next Congress can simply review them and overturn those changes as part of a law that the Gingrich GOP introduced to overturn Clinton's last-minute regulatory actions (see the Congressional Review Act).

Note to readers: actual text begins at Page 12.

Am I the only one pleased with how well organized and "skimable" this document is?

Text blocks are aligned properly, text sizes are used for information hierarchy. It's better than most documentation I peruse on a regular basis.

Perhaps someone of a legal bent can explain what this means.

it's only 10 pages, single column. you want someone else to filter what the judge is saying for you?

Some people aren't as well versed in the law. Give the guy a break. Chill.

I am chill, it's just that it's not much reading and sounds like the guy didn't even make an attempt to skim through it and pick up a few things. It's lazy.

Not a lawyer, but lawfareblog coverage should be accessible no? (I'm reading it right now).

https://www.lawfareblog.com/supreme-court-declines-review-se...

Written by a college freshman.

Who says millennials are useless?

FWIW, author is Gen Z, not a Millennial. The latest end birth I've seen for Millennials is 2000 (normally ~1996); as a rising freshman, author was most likely born in 2001-2003.

OT: Gen Z are about to show us what it really looks like when people spend their entire lives online. Be ready.

I, for one, would never say that. Unfortunately for millennials, they can't take credit for the work of Gen Z.

It means nothing. Thomas has a penchant for gratuitously giving his personal opinion when nobody is asking for it. If I had a nickel for every time Thomas wrote to suggest the court should pick up an ancillary issue in the future, and then proceeded to write his future opinion....

Sometimes I wish the court would pick up an issue. Many years ago Thomas wrote in a cert denial regarding developer exactions (i.e. making a developer pay for something as a price for project approval) that the court should find a [better] case to make clear the boundaries of unconstitutional exactions. But of course the court has yet to do that, and even if it did I have little reason to believe (unfortunately) the rest of the justices shared Thomas' disdain for exactions.

The same is likely true here: I doubt most of the other justices have a pressing desire to step into the middle of the Section 230 debate, and even if they did I doubt even more that they would share Thomas' peculiar interpretation of the law. Note that just because Thomas (or any justice) says that their interpretation is the obvious "plain text" meaning, that doesn't actually mean it is.

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