Failed Analogies: Justice Thomas’s Concurrence in Biden v. Knight First Amendment Institute

Authors

Sarah S. Seo

Abstract

Twenty-six years ago, twenty-six words created the internet. Section 230 of the Communications Decency Act is a short, yet powerful, provision that notably protects social media platforms, among other interactive computer services, from liability for content created by third-party users. At the time of its enactment, Section 230 aimed to encourage the robust growth of the then-nascent internet while protecting it from government regulation. More recently, however, it has been wielded by Big Tech companies like Twitter and Facebook to prevent any liability for real-world harms that stem from virtual interactions conducted over their platforms.

Although the Supreme Court has never taken on a Section 230 case itself, Justice Thomas individually stands out as one of the most prominent anti-Section 230 advocates today. When the Supreme Court declined to hear a Section 230 case in 2020, Justice Thomas issued a statement respecting the Court’s denial that planted the seeds for his disapproval of the statute. When the Court issued a brief opinion in 2021 instructing a lower court to dismiss a Section 230 case as moot due to the change in the presidential administration, Justice Thomas issued a second statement concurring in the opinion, continuing his charge against Big Tech companies that profit from Section 230 immunity. Most recently, when the Court declined to hear a Section 230 case in 2022, Justice Thomas issued his third statement imploring either Congress to step in or potential litigants to bring up an “appropriate case” so the Supreme Court could interpret Section 230 itself.

Justice Thomas’s concurring opinion in Biden v. Knight First Amendment Institute—his second pass at Section 230—provides Justice Thomas’s most substantive call for reform. His opinion pro- poses recommendations for how the legislature should treat digital platforms and social media companies, analogizing them to common carriers and places of public accommodation. This Note rejects both analogies. To reach this conclusion, this Note examines the histories of both proposed common law frameworks and the creation of Section 230 itself. Finally, this Note suggests limiting this powerful immunity by excluding digital platforms that exhibit deliberate indifference to unlawful or harmful content, or subsequent conduct arising from such content.

Recommended Citation

Sarah S. Seo, Failed Analogies: Justice Thomas’s Concurrence in Biden v. Knight First Amendment Institute, 32 Fordham Intell. Prop. Media & Ent. L.J. 1070 (2022).
Available at: https://ir.lawnet.fordham.edu/iplj/vol32/iss4/5