As Supreme Court takes up Google case, only Clarence Thomas has made his thoughts clear

biggest cases the Supreme Court will wrestle with this year deals with the scope of a controversial law that shields Big Tech companies like Google and Twitter from legal liability for most of the content users post on their sites. 

Despite the significance of the issue – and a roiling debate over content moderation on social media – most of the justices will hear arguments in Gonzalez v. Google next month without ever having revealed their thoughts on the law, known as Section 230.

One notable exception: Associate Justice Clarence Thomas.

In a series of statements, Thomas has criticized lower courts for reading too much into Section 230 and he has made a case for giving the government far greater power to regulate social media. The other eight justices are largely a blank slate.

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“The real question is what do the justices think on the merits and I think we have absolutely no idea,” said Alan Rozenshtein, a law professor at the University of Minnesota and a senior editor at Lawfare. “The internet of today looks very different than the internet of the mid-1990s. To be frank, I’m surprised it’s taken them this long.”

What have the Supreme Court justices said about Section 230? 

• Thomas has been the most vocal justice in criticizing the way lower courts interpret Section 230, the law that generally shields internet firms from liability for publishing user content. In 2020, for instance, he wrote that extending immunity beyond a “natural reading” of Section 230 can have “serious consequences.”  
• No other justice signed onto that position, nor a similar statement Thomas wrote last year questioning whether lower courts’ reading of the law is consistent with “the statute’s plain text.” That means it’s a bit of a mystery how the court will resolve an issue that also has created unusual political alliances.   
• The outcome of the Google case, to be argued Feb. 21, could have a significant impact on the internet itself. Google, Facebook-owner Meta and others say that if the court significantly limits Section 230 it could lead to a proliferation of objectionable content on some sites and knee-jerk removal of content on others.    

What has Clarence Thomas written on Section 230?

Thomas, among the court’s stalwart conservatives, asserted in a 2020 statement that lower courts have long read “nontextual arguments” into Section 230 and had left “questionable precedent in their wake.” That general position is not held only by conservatives: The Biden administration made a similar point in the Google case. 

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At issue in the Google case is whether targeted recommendations YouTube’s algorithm makes to users – suggesting the next video to watch – are shielded by Section 230. The family of a woman killed in an Islamic State group attack in 2015 sued Google, which owns YouTube, for promoting the group’s videos via its algorithms.

Thomas revisited his position last year in the case of a 15-year-old who sued Facebook after a sex trafficker used the platform to lure her into a meeting. 

In a separate case in 2021 about former President Donald Trump’s decision to block users on Twitter, Thomas said that large social media firms could be treated like communication utilities, asserting that the concentration in the industry gives some digital platforms “enormous control over speech.” Such a treatment, however, would open the companies up to far more government regulation of their content.  

‘Weird coalitions’ 

The debate over Section 230 has created unusual political alliances. Democrats and Republicans have long argued large tech companies have become too powerful and need tougher regulation. Both parties have threatened to narrow or repeal Section 230.

But they make those arguments for different and often conflicting reasons.

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