Section 230 allows Big Tech companies to censor content online while at the same time excusing them from liability for criminal activity on their platforms.
Thomas agreed with the Supreme Court's decision not to take up a specific case involving Facebook. But as part of the decision he wrote, "Assuming Congress does not step in to clarify §230's scope, we should do so in an appropriate case."
Thomas hinted as early as April 2021 that if Congress did not take aim at Section 230, then SCOTUS may be able to limit its protections if the right case is heard by the Court.
"We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms," wrote Thomas.
Referring to digital media companies like Twitter and Facebook, Thomas added, "Today's digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties."
The Communications Decency Act was passed in 1996. Section 230 of the act protects internet companies from being held liable for user-created illicit activity present on their platforms.
The case SCOTUS heard involved an adult male who, through Facebook, lured a 15-year-old girl to meet up with him. The male met the girl, raped and beat her multiple times, and then trafficked her for sex.
In the court documents, the victim is referred to as Jane Doe. She eventually escaped her trafficker and sued Facebook in Texas state court, alleging the tech giant violated the state's anti–sex-trafficking statute and common law offenses.
The Texas Supreme Court dismissed Doe's common law claims on the grounds that Facebook is protected under Section 230. However, her statutory sex-trafficking claim was allowed to move forward in the court system. While Thomas agreed SCOTUS could not consider Doe's case because it is still ongoing in Texas, he expressed a desire to hold Facebook accountable for profiting greatly while its users are put in danger.
The SCOTUS justice explained:
Here, the Texas Supreme Court afforded publisher immunity even though Facebook allegedly "knows its system facilitates human traffickers in identifying and cultivating victims," but has nonetheless "failed to take any reasonable steps to mitigate the use of Facebook by human traffickers" because doing so would cost the company users — and the advertising revenue those users generate.
Main street users are not the only ones aggrieved, however.
For years, conservatives and Republicans have advocated putting checks on Big Tech's power. Sitting political office holders and media voices have faced censorship.
Conservative figures such as former President Donald Trump, Rep. Marjorie Taylor Greene, R-Ga., Alex Jones, Roger Stone, Gavin McInnes, Milo Yiannopoulos, Lin Wood, Lt. Gen. Michael Flynn, Sidney Powell, Mike Lindell, Nick Fuentes, Jim Hoft and James O'Keefe have been permanently banned from Twitter.
In early January, Kentucky's Sen. Rand Paul removed his content from YouTube, saying he would no longer put his messaging in the hands of Big Tech.
"About half of the public leans right," Sen. Paul said. "If we all took our messaging to outlets of free exchange, we could cripple Big Tech in a heartbeat."