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Even the most serious students of the law sometimes get the law wrong. That’s why I’m willing to cut some slack for Justice Clarence Thomas, who took the occasion this week to propose that some plaintiff, somewhere, should bring the right kind of Section 230 case to the Supreme Court. Thomas practically issued an engraved invitation for parties to bring a case that would enable the court to narrow the law that law professor Jeff Kosseff has rightly classified as containing “the 26 words that created the internet”: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
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This language, a single sentence in Section 230 of the Communications Decency Act, establishes a baseline of protection for internet platforms from being
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But I suspect a different line of thinking inspired the Thomas comment. A Supreme Court justice’s public reservations about Section 230 do not come in a vacuum. For months now, politicians have been attacking 230. While both sides of the aisle have complaints (including from former Vice President Biden), the most virulent ones come from the right. So whether he intended it or not, Thomas’ words are a dog whistle to those who want to hobble social media’s ability to filter out lies that poison the culture, endanger our health, and generally make us hate each other.
Indeed, it didn’t take long for the justice’s comments to energize conservatives who despise Section 230. Only hours after the Thomas memo was posted, it found its way into the Amy Coney Barrett hearings. Senator Josh Hawley, who wants to strip Section 230 protections from platforms if they moderate misinformation in political speech,