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

wenty-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.