Supreme Court To Courts And Federal Agencies Trying To Rewrite Section 230: Knock It Off

from the bottom-line dept

A version of this post appeared on Project Disco: What the Bostock Decision Teaches About Section 230.

Earlier this summer, in Bostock v. Clayton County, Ga. the Supreme Court voted 6-3 in favor of an interpretation of Title VII of the Civil Rights Act that bars discrimination against LGBT people. The result is significant, but what is also significant – and relevant for this discussion here – is the analysis the court used to get there.

What six justices ultimately signed onto was a decision that made clear that when a statute is interpreted, that interpretation needs to be predicated on what the statutory language actually says, not what courts might think it should say.

Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. [p. 33]

This rule holds even when it might lead to results that were not necessarily foreseen at the time the legislation was passed:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. [p. 2]

Courts do not get to second guess what Congress might have meant just because it may be applying that statutory text many years later, even after the world has changed. Of course the world changes, and Congress knows it will when it passes its legislation. If later on it thinks that a law hasn’t scaled to changed circumstances it can change the law. But per the Supreme Court, courts don’t get to make that change for Congress. The statute means what it says, and courts are obligated to enforce it the way Congress wrote it, regardless of whether they like the result.

The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them. [p. 31]

Seth Greenstein already questioned how the Copyright Office’s Section 512 study can have any merit in the wake of the Bostock decision. In light of this Supreme Court ruling, it’s also hard to see how certain recent decisions denying Section 230 protection to platforms can survive. And it further calls into question the Constitutional propriety of the DOJ and NTIA efforts to reinterpret Section 230’s provisions and give these reinterpretations the force of law.

On the litigation front, the Bostock ruling calls into question the Ninth Circuit’s decision in Enigma Software Group v. Malwarebytes. In this case, Malwarebytes had been flagging Enigma’s software as malware based on its users’ complaints. Enigma sued, arguing that this flagging was an impermissible moderation decision because it was motivated by anticompetitive animus since the two companies at least nominally offer similar sorts of software. This opinion came at the early stage of the lawsuit, so there has not been a finding that there was in fact any anticompetitive animus. But the Ninth Circuit decided that because there could have been an anticompetitive motivation behind Malwarebytes’s moderation decision flagging Enigma’s software as malware, Section 230 was not available to Malwarebytes as a defense and caused the lawsuit to be dismissed.

The issue raised by this decision is not whether there was anticompetitive motivation or not. Even if there were, the issue is that the Ninth Circuit decided that possible animus would bear on whether Malwarebytes’s moderation decision was protected by Section 230, because it read into Section 230 a limitation that wasn’t there:

We hold that the phrase “otherwise objectionable” [in subsection (c)(2) of the statute] does not include software that the provider finds objectionable for anticompetitive reasons. [p. 1045]

And that’s a problem, because it puts the court in the position of doing the policymaking that is supposed to be the purview of Congress and rewriting the statute around that policy. But as the Supreme Court reminded us in Bostock, the courts don’t get to make these sorts of changes to legislation.

Not even if the court thinks that the statutory language fails the policy that Congress intended to meet. In this case the Ninth Circuit spent some time exploring Congress’s apparent desire when it passed Section 230 for it to help stimulate competition. It then used that analysis to buttress its conclusion that Congress therefore must have meant to have this limitation to Section 230(c)(2) protection, built into the statute. But as Bostock made clear, this rationale illustrates why the courts don’t get to fix the statute for Congress. Congress chose the language it wanted to vindicate its policy value. Sure, as with any statute, as things have evolved that language might potentially no longer be effective in achieving that value. But Congress understands that things can change, and if it now feels that the statutory language it previously chose is no longer working, then it can change it. That’s Congress’s job. It is not the job of the courts. Especially not if it turns out that Congress still thinks it is the better language to have.

Nor is it the job of any agency of the Executive Branch. True, the Bostock decision does not explicitly spell out that agencies are prohibited from making changes to legislation. But the Constitution is clear that legislating is the domain of Congress, and if the courts, who are charged with statutory interpretation, don't get to read new language into a statute, there is even less reason to believe that the Executive Branch gets to either.

Which puts the DOJ’s efforts to limit the availability of Section 230’s platform protection on extremely shaky ground, and it should make the NTIA petition for an FCC rulemaking dead on arrival. While the Ninth Circuit in Malwarebytes chose to read in a limitation into Section 230 (c)(2) that wasn’t there, the NTIA petition calls for the FCC to superimpose multiple, lengthy sections of regulatory code on top of the more minimal statutory language Congress chose to provide Section 230 immunity more broadly.

In other words, NTIA has asked the FCC to usurp Congress’s legislative role to rewrite legislation, which is definitely not the FCC’s job. And for good reason, because the changes NTIA proposes the FCC make would turn it into an entirely different and much more narrow law that vindicates entirely different policy goals than Congress intended when it passed Section 230 to ensure that the Internet could continue to grow to be vibrant and competitive. And it would do it at the latter’s expense.

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Filed Under: bostock, section 230, statutory language, supreme court


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  • icon
    Anonymous Anonymous Coward (profile), 1 Sep 2020 @ 11:19am

    Do as we say, not as we do

    Given the Bostock decision, should the Supreme Court be required to listen to itself and overturn its Qualified Immunity fabrication?

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Sep 2020 @ 12:16pm

      Re: Do as we say, not as we do

      I was thinking that EXACT same thing

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Sep 2020 @ 2:02pm

        Re: Re: Do as we say, not as we do

        Yeap, i was on that bus as well. i was thinking...

        When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.

        Yes, but we can invent law out of thin air when we want to, like QI, because reasons.

        link to this | view in chronology ]

    • icon
      Thad (profile), 1 Sep 2020 @ 2:27pm

      Re: Do as we say, not as we do

      Required by whom?

      link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 1 Sep 2020 @ 2:36pm

        Re: Re: Do as we say, not as we do

        The Supreme Courts own rulings (at the least so they look less two faced). But you are right, who could push that button?

        Congress could certainly take care of the Qualified Immunity issue, but they haven't.

        link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Sep 2020 @ 5:58pm

        Re: Re: Do as we say, not as we do

        One would hope that it would be required by the final dawning of a little self-awareness, openly acknowledged, with the courage to make right their wrong.

        link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 12:49pm

    So, no mention of the politicians who are trying to do the same, then! In fact they are even more dangerous than the feds!

    link to this | view in chronology ]

    • icon
      nasch (profile), 2 Sep 2020 @ 6:39am

      Re:

      So, no mention of the politicians who are trying to do the same, then!

      If by politicians you mean members of Congress, then yes they were mentioned.

      "If later on [Congress] thinks that a law hasn’t scaled to changed circumstances it can change the law."

      "The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress."

      "And that’s a problem, because it puts the court in the position of doing the policymaking that is supposed to be the purview of Congress and rewriting the statute around that policy."

      et cetera

      link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 1:28pm

    Can someone give the Supreme Court a clue?

    Can someone ask the supreme court to explain how Qualified Immunity still exists, when 'the written law is the law' and there is no written law called or documenting 'qualified immunity'.

    Sounds like the Supreme Court if full of Hypocrites...

    The law is the law, unless we decide to make things up, then those are the law too... and if the flying spaghetti monster returns, anything he says is the law (also anything that Brett Kavanaugh or his fraternity brothers say about that thing that happened, but didn't, yeah those are laws too)...

    I wouldn't think the government could be bought (especially by a bankrupt businessman)... but here we are... Is that new country on a cruise ship somewhere still an option? How do I get off this crazy thing?

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 7:28pm

    God what a joke you are. You are now co-opting the Originalist argument because it can be used to arrive at your perferred outcome.

    You know what? Google and Twitter and FB and YouTube can stick a fork in themselves because one way or another, they're done. This nation is not going to be thrown into a civil war because Brin and Page and some ex-wife's sister think they can to tell everyone else what they can and cannot not know about and what they should and should not think and believe.

    We can use 230 to get there or we find other ways, but in the end, their power is going to be taken away forever because this nation is more important than a bunch of megalomanical billioniares and their fantasies aboput controlling populations.

    link to this | view in chronology ]

  • icon
    Toom1275 (profile), 1 Sep 2020 @ 8:24pm

    Or the FCC's redefining of telecom law to claim that ISPs aren't title II telecommunications services...

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2020 @ 11:25am

    Surpress dissenting voices Mike! Nice going... you're the MAN around here. Da' Man!

    Hey.., Techdirt is a private company. It can surpress what it wants.

    Must be nice to command a fairyland where you can make all the bad men fly, Mummy.

    link to this | view in chronology ]


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