(order list: 592 u.s.) tuesday, october 13, 2020 orders in … · 2020. 11. 9. · (order list: 592...
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(ORDER LIST: 592 U.S.)
TUESDAY, OCTOBER 13, 2020
ORDERS IN PENDING CASES
20A35 ARANA-MOLINA, MIRIAM H., ET AL. V. BARR, ATT'Y GEN.
The application for stay addressed to The Chief Justice and
referred to the Court is denied.
20M25 HOLLYFRONTIER CHEYENNE, ET AL. V. RENEWABLE FUELS ASSN., ET AL.
The motion for leave to file a petition for a writ of
certiorari with the supplemental appendix under seal is granted.
20M26 LATTISAW, JOSEPH W. V. DISTRICT OF COLUMBIA
The motion to direct the Clerk to file a petition for a writ
of certiorari out of time is denied.
20M27 AMMAR I. V. CONNECTICUT
The motion for leave to file a petition for a writ of
certiorari with the supplemental appendix under seal is granted.
20-5296 A. I. V. M. A.
20-5381 CURTIN, LAWRENCE F. V. CORTEZ, KIMBERLY
The motions of petitioners for leave to proceed in forma
pauperis are denied. Petitioners are allowed until November 3,
2020, within which to pay the docketing fees required by Rule
38(a).
CERTIORARI GRANTED
19-1434
19-1452
19-1458
) ) ) ) )
UNITED STATES V. ARTHREX, INC., ET AL.
SMITH & NEPHEW, INC., ET AL. V. ARTHREX, INC., ET AL.
ARTHREX, INC. V. SMITH & NEPHEW, INC., ET AL.
The petition for a writ of certiorari in No. 19-1434 is
1
granted as to Federal Circuit case No. 2018-2140, and the
petitions for writs of certiorari in Nos. 19-1452 and 19-1458
are granted, all limited to Questions 1 and 2 as set forth in
the July 22, 2020 Memorandum for the United States. The cases
are consolidated, and a total of one hour is allotted for oral
argument.
CERTIORARI DENIED
19-1085 DEASEY, SHANNON, ET AL. V. SLATER, DANIELLA, ET AL.
19-1137 TENNESSEE, ET AL. V. DEPT. OF STATE, ET AL.
19-1186 BAKER, DIR., SC DEPT. OF HEALTH V. PLANNED PARENTHOOD, ET AL.
19-1352 WESTERN OILFIELDS SUPPLY CO. V. SCALIA, SEC. OF LABOR, ET AL.
19-1378 PHAZZER ELECTRONICS, INC. V. TASER INTERNATIONAL, INC.
19-1433 STAVELY, AUTUMN V. NORMAN, JEFFERY G., ET AL.
19-1456 KK-PB FINANCIAL, LLC V. 160 ROYAL PALM, LLC
19-8588 DONELSON, ROBERT V. UNITED STATES
19-8831 REID, ERIC V. ARKANSAS
19-8903 ) GIBSON, WILLIAM C. V. INDIANA )
19-8904 ) GIBSON, WILLIAM C. V. INDIANA
20-5 BLUMENTHAL, RICHARD, ET AL. V. TRUMP, PRESIDENT OF U.S.
20-10 KOLLARITSCH, EMILY, ET AL. V. MI STATE UNIV. BOARD, ET AL.
20-102 HADSELL, CHRISTOPHER V. BASKIN, BARRY, ET AL.
20-114 BUFKIN, MICHAEL E. V. SCOTTRADE, INC., ET AL.
20-124 FUSCO, ROBERT V. MAYS, WARDEN
20-125 IRON STONE REAL ESTATE, ET AL. V. RATNER, STEPHEN, ET AL.
20-131 ESSITY HYGIENE & HEALTH V. CASCADES CANADA ULC, ET AL.
20-135 CUSTOMEDIA TECHNOLOGIES, LLC V. DISH NETWORK CORPORATION, ET AL.
20-141 BLOOMGARDEN, HOWARD B. V. NATIONAL ARCHIVES AND RECORDS
20-144 SPENCER SAVINGS BANK, ET AL. V. SEIDMAN, LAWRENCE B.
2
20-148 WASHINGTON, MARVIN, ET AL. V. BARR, ATT'Y GEN., ET AL.
20-159 DEVOS, JOHN V. RHINO CONTRACTING, INC., ET AL.
20-165 CARROLL, ANGELA L. V. MILLER, TIMOTHY W.
20-168 NUSBAUM, PAUL W. V. NUSBAUM, MARSHA R., ET AL.
20-172 UKPAI, UKPAI I. V. CONTINENTAL AUTOMOTIVE SYSTEMS
20-175 JINIL STEEL CO. V. VALUEPART, INC., ET AL.
20-178 PRAFADA, ANNE V. MESA UNIFIED SCHOOL DISTRICT
20-185 JONES, RICKEY N. V. BARBERA, CHIEF JUDGE, ETC.
20-196 SORIANO NUNEZ, ILMA A. V. BARR, ATT'Y GEN.
20-211 ROSEN, BARRY V. UNITED STATES, ET AL.
20-223 O'DONNELL, MICHAEL P. V. UNITED STATES
20-228 ESIP SERIES 2, LLC V. PUZHEN LIFE USA, LLC
20-232 ANDERSON, ROBERT V. KENNEDY, TERI
20-252 GANNETT CO., INC., ET AL. V. LARSON, RYAN
20-280 GEORGIOU, GEORGE V. UNITED STATES
20-302 DOTSON, STEVEN V. UNITED STATES
20-313 ACER AMERICA CORP., ET AL. V. INTELLISOFT, LTD., ET AL.
20-327 BBB INDUSTRIES, LLC V. CARDONE INDUSTRIES, INC.
20-335 MARYLAND RECLAMATION ASSOCIATES V. HARFORD COUNTY, MD
20-338 BENJAMIN, JOHNNY C. V. UNITED STATES
20-345 PUESCHEL, DEBORAH K. V. CHAO, SEC. OF TRANSP., ET AL.
20-346 PENNINGTON, D. ASHLEY V. BUTLER, BEATTIE I.
20-5060 GRAVES, JUSTIN K. V. SHINN, WARDEN
20-5089 KIRKPATRICK, WILLIAM V. CHAPPELL, WARDEN
20-5119 POWELL, WAYNE V. OHIO
20-5228 U.S., EX REL. LU V. SAMRA, RAMANDEEP, ET AL.
20-5237 MANHARD, KENNETH L. V. FLORIDA
20-5254 BROWN, QUINTIN I. V. VIRGINIA
3
20-5256 MARRON, TRAVIS J. V. CLARKE, DIR., VA DOC
20-5261 HOUSTON, MICHAEL F. V. TEXAS
20-5266 ROGERS, ANGELA, ET VIR V. CADDO PARISH SCH. BD.
20-5269 VALLS, AMADEO V. FLORIDA
20-5270 WILSON, KEITH A. V. FLORIDA
20-5271 WILLINGHAM, TOSHI E. V. BAUMAN, WARDEN
20-5277 THOMPSON, JOSEPH V. HOUMA TERREBONNE HOUSING, ET AL.
20-5282 ZORIKOVA, ALLA A. V. REALVEST, INC.
20-5288 SCHULER, EUGENE P. V. CLARKE, DIR., VA DOC
20-5289 SANDERSON, JUSTIN W, V. FOLEY, WARDEN
20-5295 ATKINS, ISAAC S. V. SAUL, ANDREW M.
20-5297 BRIDGES, DEMARIUS V. ILLINOIS
20-5298 SMITH, RODNEY A. V. BARKER, SUSAN, ET AL.
20-5305 SMITH, RONNIE V. NY CHILD SUPPORT, ET AL.
20-5307 GALLOGLY, REBECCA H. V. BARR, ATTY. GEN.
20-5310 FRANKLIN, BENJAMIN V. BLAIR, GLENNA S.
20-5313 TUCKER, MELQUAN V. NEW YORK
20-5314 STUBBLEFIELD, JARED V. BROWN, CLERK, ET AL.
20-5316 SMITH, TYRONE V. INCH, SEC., FL DOC, ET AL.
20-5318 ROZENMAN, DIMITRI V. SHINN, DIR., AZ DOC, ET AL.
20-5322 TORRENCE, PATRICK H. V. ALASKA
20-5328 GIBLIN, JEFFREY P. V. WASHINGTON
20-5330 AUCOIN, LAYNE V. CUPIL, ANDREW, ET AL
20-5331 BRUZZONE, MICHAEL A. V. INTEL CORPORATION, ET AL.
20-5333 BLANCO, NORMAN P. V. DIAZ, SEC., CA DOC, ET AL.
20-5350 VENABLE, JORDAN D. V. PHOENIX, AZ, ET AL.
20-5352 WOODWARD, SHAWN V. ALI, MOHAMMED, ET AL.
20-5354 JORDAN, JOHNNIE L. V. INCH, SEC., FL DOC, ET AL.
4
20-5370 GUILLEN, LUIS V. WASHBURN, WARDEN
20-5371 FARMER, KEITH L. V. LEBO, WARDEN
20-5421 DOWNER, DOVED B. V. INCH, SEC., FL DOC, ET AL.
20-5430 MEYERS, ANTHONY G. V. JESS, WARDEN
20-5447 WILSON, JOHN D. V. FLORIDA
20-5458 MARTIN-SOSA, FIDEL A. V. UNITED STATES
20-5464 BANKS, DWAYNE V. UNITED STATES
20-5476 HORTON, DEREK T. V. ALABAMA
20-5477 IDADA, ELVIS H. V. UNITED STATES
20-5482 SORRO, MARVIN A. V. BRNOVICH, ATT'Y GEN. OF AZ
20-5487 ADAMS, JEROME V. ILLINOIS
20-5496 RAM, SANTOSH V. UNITED STATES
20-5498 SILVIA, JOHN V. UNITED STATES
20-5507 LANDERS, LACI V. UNITED STATES
20-5508 MORAN, DAVID P. V. FLORIDA
20-5510 PERNELL, ROBERT L. V. UNITED STATES
20-5513 McWILLIAMS, TIMOTHY A. V. UNITED STATES
20-5519 WANKE, RICHARD V. ILLINOIS
20-5520 WILLIAMSON, MICHAEL V. MAY, WARDEN
20-5523 JURY, BRIAN V. GRAY, WARDEN
20-5524 JOHNSON, RANAU D. V. OHIO
20-5530 GORDON, TONY V. UNITED STATES
20-5533 McNAMARA, GAYLE V. UNITED STATES
20-5535 PLATT, RANDY V. UNITED STATES
20-5540 SANDERS, UGUNDA G. V. UNITED STATES
20-5542 KUGLER, DEVIN M. V. ILLINOIS
20-5543 GALINDO-CABALLERO, JAVIER V. UNITED STATES
20-5548 HOOD, JAMES M. V. UNITED STATES
5
20-5549 LOPEZ-GARCIA, JAVIER V. UNITED STATES
20-5552 OHIO, EX REL. JEREMY KERR V. KELSEY, REEVE
20-5553 LAWRENCE, JOSEPH E. V. MONTANA
20-5554 EAGLE CHASING, KENTON D. V. UNITED STATES
20-5555 EDWARDS, FRANKLIN C. V. ILLINOIS
20-5560 FECHNER, BRIAND D. V. UNITED STATES
20-5561 HUNNICUTT, CRAIG E. V. UNITED STATES
20-5568 CASTRO, ALEX A. V. UNITED STATES
20-5569 GARCIA-TORO, CARLOS V. OHIO
20-5571 PACHECO, ANGEL C. V. MAINE
20-5572 WITKIN, MICHAEL A. V. LOTERSZTAIN, MARIANA, ET AL.
20-5574 TORRES, JOSE L. V. LUTHER, SUPT., SMITHFIELD
20-5576 WILLIAMS, SARINA A. V. UNITED STATES
20-5577 TIMBERS, MALIK V. UNITED STATES
20-5580 PHILLIPS, KYLE V. FLORIDA
20-5586 ZAMUDIO-SILVA, JOSE V. UNITED STATES
20-5587 LOVE, ZACHARY J. V. UNITED STATES
20-5590 CHACON-LARA, MANUEL V. UNITED STATES
20-5595 BOX, JOSHUA G. V. UNITED STATES
20-5596 GREEN, KEVIN D. V. UNITED STATES
20-5597 SWENSON, RORY V. ILLINOIS
20-5599 GREENWELL, MICHAEL W. V. SAUL, ANDREW M.
20-5601 GRINDER, ERIC W. V. UNITED STATES
20-5603 GLOVER, MICHAEL A. V. PENNSYLVANIA
20-5604 ISIBOR, ATORBE A. V. UNITED STATES
20-5606 BROWN, KEITH A. V. RAMIREZ, ALBERTO
20-5611 BUXTON, ANDY V. SHAPIRO, ATT'Y GEN. OF PA
20-5612 BROWN, ANTHONY R. V. UNITED STATES
6
20-5614 FELTON, DERRICK A. V. UNITED STATES
20-5615 GORDON, MICHAEL V. UNITED STATES
20-5620 SOTO-BARRAZA, IVAN, ET AL. V. UNITED STATES
20-5622 STARKS, LARRY E. V. USDC CD IL
20-5623 STEFANYUK, MAKSIM V. UNITED STATES
20-5625 WILLIAMS, RICKY V. INCH, SEC., FL DOC, ET AL.
20-5628 CORONA-VERDUZCO, JAVIER V. UNITED STATES
20-5635 SMITH, DANIEL T. V. WARDEN, FCI BEAUMONT
20-5636 FIGUEROA, MIGUEL V. UNITED STATES
20-5637 PAGE, LIMMIA V. NEW YORK
20-5644 LIMARY, JONATHAN V. MAINE
20-5648 GUIDRY, DAMIEN V. UNITED STATES
20-5650 CRUZ-RIVERA, CARLOS V. UNITED STATES
20-5652 LOPEZ, DANIEL L. V. UNITED STATES
20-5653 ESPINOZA ESPINOZA, HERMENEGILDO V. UNITED STATES
20-5654 ACUNA-DUENAS, AARON J. V. UNITED STATES
20-5655 RICHARDSON, CASYE N. V. UNITED STATES
20-5656 ELLIS, PRISCILLA A. V. UNITED STATES
20-5658 RACIOPPI, MARTIN V. UNITED STATES
20-5660 ST. GEORGE, PERCY V. RANSOM, SUPT., DALLAS, ET AL.
20-5666 MENDOZA, CRISTIAN V. UNITED STATES
20-5668 SUNDBERG, KELLY F. V. OREOL, EXEC. DIR., STATE HOSP.
20-5669 GEORGE, CHRISTOPHER P. V. UNITED STATES
20-5670 GIVINS, HENRY H. V. UNITED STATES
20-5681 SUMLIN, RYAN K. V. UNITED STATES
20-5685 SANCHEZ, RUBEN V. SILVA, STEVEN, ET AL.
20-5687 BRYANT, JOHN O. V. UNITED STATES
20-5688 BERRY, JOSEPH L. V. OHIO
7
20-5692 WISE, JOHNATHON N. V. UNITED STATES
20-5695 DuPREE, TONY V. FLORIDA
20-5704 BORDEN, LEONARD V. UNITED STATES
20-5706 BERG, MARK V. UNITED STATES
20-5709 COLE, RICKEY V. UNITED STATES
20-5710 COCA-ORTIZ, JAIME E. V. UNITED STATES
20-5711 SMITH-GARCIA, DAVID V. UNITED STATES
20-5717 BRADNER, WILLIAM V. UNITED STATES
20-5720 GARCIA-MORENO, MARTIN V. UNITED STATES
20-5721 DOUPREA, SHEYNA V. ESPINOZA, WARDEN
20-5727 EDWARDS, MARTEZ L. V. UNITED STATES
20-5737 LEWIS, JESSE V. UNITED STATES
20-5743 MELENDEZ, JOHNNY V. UNITED STATES
20-5744 MILLER, ANTONIO V. UNITED STATES
20-5745 MONICAL, BRADLEY W. V. TOWERS, CHRISTINA, ET AL.
20-5749 HART, ELIJAH V. UNITED STATES
20-5756 XU, CHEN V. NEW YORK, NY
The petitions for writs of certiorari are denied.
19-1057 RODRIGUEZ, LORI, ET AL. V. SAN JOSE, CA, ET AL.
The motion of Gun Owners of California, et al. for leave to
file a brief as amici curiae is granted. The petition for a
writ of certiorari is denied.
19-1272 RETZLAFF, THOMAS C. V. VAN DYKE, JASON L.
The motion of 16 Media Organizations and Advocacy Groups for
leave to file a brief as amici curiae is granted. The petition
for a writ of certiorari is denied.
19-1280 ID DOC, ET AL. V. EDMO, ADREE
The petition for a writ of certiorari is denied. Justice
8
Alito, with whom Justice Thomas joins, dissenting from the
denial of certiorari: I would hold that the case is moot and
direct that the decision below be vacated. United States v.
Munsingwear, Inc., 340 U. S. 36 (1950).
19-1291 HAMNER, CHARLES V. BURLS, WARDEN, ET AL.
The motion of Federal Corrections Directors for leave to
file a brief as amici curiae is granted. The petition for a
writ of certiorari is denied.
20-100 BARTH, MICHAEL S. V. BERNARDS TWP. PLANNING, ET AL.
20-154 BYZON, WAYNE P., ET UX. V. PNC BANK, NAT. ASSN.
The petitions for writs of certiorari are denied. Justice
Alito took no part in the consideration or decision of these
petitions.
20-227 MADEJ, CYNTHIA, ET VIR V. MAIDEN, JEFF
The motion of Disability Rights Organizations for leave to
file a brief as amici curiae is granted. The petition for a
writ of certiorari is denied.
20-259 NGUYEN, MINHNGA V. BOEING CO.
The petition for a writ of certiorari is denied. Justice
Alito took no part in the consideration or decision of this
petition.
20-318 EQUAL MEANS EQUAL, ET AL. V. FERRIERO, DAVID S.
The petition for a writ of certiorari before judgment is
denied.
20-5249 BLACHER, MARLON V. CALIFORNIA
The motion of petitioner for leave to proceed in forma
pauperis is denied, and the petition for a writ of certiorari is
dismissed. See Rule 39.8.
9
20-5332 BUSH, WILLIAM D. V. CALIFORNIA, ET AL.
The petition for a writ of certiorari before judgment is
denied.
20-5401 SUNDY, TIM V. FRIENDSHIP PAVILION, ET AL.
The motion of petitioner for leave to proceed in forma
pauperis is denied, and the petition for a writ of certiorari is
dismissed. See Rule 39.8.
20-5564 AKEL, ANTONIO U. V. UNITED STATES
The petition for a writ of certiorari is denied. Justice
Kagan took no part in the consideration or decision of this
petition.
20-5581 DREVALEVA, TATYANA E. V. UNITED STATES
The motion of petitioner for leave to proceed in forma
pauperis is denied, and the petition for a writ of certiorari is
dismissed. See Rule 39.8. As the petitioner has repeatedly
abused this Court's process, the Clerk is directed not to accept
any further petitions in noncriminal matters from petitioner
unless the docketing fee required by Rule 38(a) is paid and the
petition is submitted in compliance with Rule 33.1. See Martin
v. District of Columbia Court of Appeals, 506 U. S. 1 (1992)
(per curiam).
20-5583 CROSBY, GREGORY D. V. UNITED STATES
The petition for a writ of certiorari is denied. Justice
Gorsuch took no part in the consideration or decision of this
petition.
20-5661 SHELTON, MONTY M. V. UNITED STATES
The petition for a writ of certiorari is denied. Justice
Kagan took no part in the consideration or decision of this
10
petition.
HABEAS CORPUS DENIED
20-5674 IN RE JAMES WARD
20-5691 IN RE FREEMAN BERRY
20-5731 IN RE BRENT L. ALFORD
20-5761 IN RE ANTONIO M. BOGAN
The petitions for writs of habeas corpus are denied.
MANDAMUS DENIED
20-5374 IN RE AMRO ELANSARI
20-5726 IN RE CHARLETTE D. JOHNSON
The petitions for writs of mandamus are denied.
20-5236 IN RE RUSSELL ROPE
20-5575 IN RE VAN L. WILLIAMS
The petitions for writs of mandamus and/or prohibition are
denied.
PROHIBITION DENIED
20-5260 IN RE KENTON G. FINDLAY
20-5534 IN RE MARCOS A. BLANCAS
20-5673 IN RE RICARDO WATKINS
The petitions for writs of prohibition are denied.
REHEARING DENIED
19-8246 THOMAS, GREGORY V. CORBETT, TOM, ET AL.
The petition for rehearing is denied.
19-1004 JAFFE, ROBERT J. V. SHERMAN, BRAD
19-7624 SHAW, JEROME V. UNITED STATES
The motions for leave to file petitions for rehearing are
denied.
11
1 Cite as: 592 U. S. ____ (2020)
Statement of THOMAS, J.
SUPREME COURT OF THE UNITED STATES MALWAREBYTES, INC. v. ENIGMA SOFTWARE
GROUP USA, LLC
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 19–1284. Decided October 13, 2020
The petition for a writ of certiorari is denied. Statement of JUSTICE THOMAS respecting the denial of certiorari.
This petition asks us to interpret a provision commonlycalled §230, a federal law enacted in 1996 that gives Inter-net platforms immunity from some civil and criminal claims. 47 U. S. C. §230. When Congress enacted the stat-ute, most of today’s major Internet platforms did not exist.And in the 24 years since, we have never interpreted this provision. But many courts have construed the law broadly to confer sweeping immunity on some of the largest compa-nies in the world.
This case involves Enigma Software Group USA and Mal-warebytes, two competitors that provide software to enable individuals to filter unwanted content, such as content pos-ing security risks. Enigma sued Malwarebytes, alleging that Malwarebytes engaged in anticompetitive conduct byreconfiguring its products to make it difficult for consumersto download and use Enigma products. In its defense, Mal-warebytes invoked a provision of §230 that states that a computer service provider cannot be held liable for provid-ing tools “to restrict access to material” that it “considers tobe obscene, lewd, lascivious, filthy, excessively violent, har-assing, or otherwise objectionable.” §230(c)(2). The Ninth Circuit relied heavily on the “policy” and “purpose” of §230to conclude that immunity is unavailable when a plaintiffalleges anticompetitive conduct.
2 MALWAREBYTES, INC. v. ENIGMA SOFTWARE GROUP USA, LLC
Statement of THOMAS, J.
The decision is one of the few where courts have relied on purpose and policy to deny immunity under §230. But the court’s decision to stress purpose and policy is familiar.Courts have long emphasized nontextual arguments wheninterpreting §230, leaving questionable precedent in their wake.
I agree with the Court’s decision not to take up this case.I write to explain why, in an appropriate case, we should consider whether the text of this increasingly importantstatute aligns with the current state of immunity enjoyed by Internet platforms.
I Enacted at the dawn of the dot-com era, §230 contains
two subsections that protect computer service providers from some civil and criminal claims. The first is defini-tional. It states, “No provider or user of an interactive com-puter service shall be treated as the publisher or speaker ofany information provided by another information content provider.” §230(c)(1). This provision ensures that a com-pany (like an e-mail provider) can host and transmit third-party content without subjecting itself to the liability that sometimes attaches to the publisher or speaker of unlawful content. The second subsection provides direct immunityfrom some civil liability. It states that no computer service provider “shall be held liable” for (A) good-faith acts to re-strict access to, or remove, certain types of objectionable content; or (B) giving consumers tools to filter the sametypes of content. §230(c)(2). This limited protection enablescompanies to create community guidelines and remove harmful content without worrying about legal reprisal.
Congress enacted this statute against specific back-ground legal principles. See Stewart v. Dutra Constr. Co., 543 U. S. 481, 487 (2005) (interpreting a law by looking tothe “backdrop against which Congress” acted). Tradition-ally, laws governing illegal content distinguished between
3 Cite as: 592 U. S. ____ (2020)
Statement of THOMAS, J.
publishers or speakers (like newspapers) and distributors(like newsstands and libraries). Publishers or speakerswere subjected to a higher standard because they exercisededitorial control. They could be strictly liable for transmit-ting illegal content. But distributors were different. Theyacted as a mere conduit without exercising editorial control, and they often transmitted far more content than they could be expected to review. Distributors were thus liable only when they knew (or constructively knew) that contentwas illegal. See, e.g., Stratton Oakmont, Inc. v. Prodigy Ser-vices Co., 1995 WL 323710, *3 (Sup. Ct. NY, May 24, 1995); Restatement (Second) of Torts §581 (1976); cf. Smith v. Cal-ifornia, 361 U. S. 147, 153 (1959) (applying a similar prin-ciple outside the defamation context).
The year before Congress enacted §230, one court blurred this distinction. An early Internet company was sued for failing to take down defamatory content posted by an uni-dentified commenter on a message board. The companycontended that it merely distributed the defamatory state-ment. But the company had also held itself out as a family-friendly service provider that moderated and took down of-fensive content. The court determined that the company’sdecision to exercise editorial control over some content “ren-der[ed] it a publisher” even for content it merely distri-buted. Stratton Oakmont, 1995 WL 323710, *3–*4.
Taken at face value, §230(c) alters the Stratton Oakmont rule in two respects. First, §230(c)(1) indicates that an In-ternet provider does not become the publisher of a piece of third-party content—and thus subjected to strict liability—simply by hosting or distributing that content. Second, §230(c)(2)(A) provides an additional degree of immunity when companies take down or restrict access to objectiona-ble content, so long as the company acts in good faith. In short, the statute suggests that if a company unknowinglyleaves up illegal third-party content, it is protected from publisher liability by §230(c)(1); and if it takes down certain
4 MALWAREBYTES, INC. v. ENIGMA SOFTWARE GROUP USA, LLC
Statement of THOMAS, J.
third-party content in good faith, it is protected by§230(c)(2)(A).
This modest understanding is a far cry from what hasprevailed in court. Adopting the too-common practice of reading extra immunity into statutes where it does not be-long, see Baxter v. Bracey, 590 U. S. —— (2020) (THOMAS, J., dissenting from denial of certiorari), courts have relied on policy and purpose arguments to grant sweeping protec-tion to Internet platforms. E.g., 1 R. Smolla, Law of Defa-mation §4:86, p. 4–380 (2d ed. 2019) (“[C]ourts have ex-tended the immunity in §230 far beyond anything that plausibly could have been intended by Congress); accord,Rustad & Koenig, Rebooting Cybertort Law, 80 Wash. L.Rev. 335, 342–343 (2005) (similar). I address several areas of concern.
A Courts have discarded the longstanding distinction be-
tween “publisher” liability and “distributor” liability. Al-though the text of §230(c)(1) grants immunity only from “publisher” or “speaker” liability, the first appellate court to consider the statute held that it eliminates distributor lia-bility too—that is, §230 confers immunity even when a com-pany distributes content that it knows is illegal. Zeran v. America Online, Inc., 129 F. 3d 327, 331–334 (CA4 1997). In reaching this conclusion, the court stressed that permit-ting distributor liability “would defeat the two primary pur-poses of the statute,” namely, “immuniz[ing] service provid-ers” and encouraging “selfregulation.” Id., at 331, 334. And subsequent decisions, citing Zeran, have adopted this hold-ing as a categorical rule across all contexts. See, e.g., Uni-versal Communication Systems, Inc. v. Lycos, Inc., 478 F. 3d 413, 420 (CA1 2007); Shiamili v. Real Estate Group of NY, Inc., 17 N. Y. 3d 281, 288–289, 952 N. E. 2d 1011, 1017 (2011); Doe v. Bates, 2006 WL 3813758, *18 (ED Tex., Dec. 27, 2006).
5 Cite as: 592 U. S. ____ (2020)
Statement of THOMAS, J.
To be sure, recognizing some overlap between publishers and distributors is not unheard of. Sources sometimes use language that arguably blurs the distinction between pub-lishers and distributors. One source respectively refers to them as “primary publishers” and “secondary publishersor disseminators,” explaining that distributors can be “charged with publication.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 799, 803 (5th ed. 1984).
Yet there are good reasons to question this interpretation.First, Congress expressly imposed distributor liability in
the very same Act that included §230. Section 502 of the Communications Decency Act makes it a crime to “know-ingly . . . display” obscene material to children, even if a third party created that content. 110 Stat. 133–134 (codi-fied at 47 U. S. C. §223(d)). This section is enforceable by civil remedy. 47 U. S. C. §207. It is odd to hold, as courts have, that Congress implicitly eliminated distributor liabil-ity in the very Act in which Congress explicitly imposed it.
Second, Congress enacted §230 just one year after Strat-ton Oakmont used the terms “publisher” and “distributor,”instead of “primary publisher” and “secondary publisher.”If, as courts suggest, Stratton Oakmont was the legal back-drop on which Congress legislated, e.g., FTC v. Accusearch Inc., 570 F. 3d 1187, 1195 (CA10 2009), one might expect Congress to use the same terms Stratton Oakmont used.
Third, had Congress wanted to eliminate both publisher and distributor liability, it could have simply created a cat-egorical immunity in §230(c)(1): No provider “shall be held liable” for information provided by a third party. After all, it used that exact categorical language in the very next sub-section, which governs removal of content. §230(c)(2).Where Congress uses a particular phrase in one subsectionand a different phrase in another, we ordinarily presumethat the difference is meaningful. Russello v. United States, 464 U. S. 16, 23 (1983); cf. Doe v. America Online, Inc., 783
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So. 2d 1010, 1025 (Fla. 2001) (Lewis, J., dissenting) (relyingon this rule to reject the interpretation that §230 eliminated distributor liability).
B Courts have also departed from the most natural reading
of the text by giving Internet companies immunity for their own content. Section 230(c)(1) protects a company frompublisher liability only when content is “provided by an-other information content provider.” (Emphasis added.) Nowhere does this provision protect a company that is itself the information content provider. See Fair Housing Coun-cil of San Fernando Valley v. Roommates.Com, LLC, 521 F. 3d 1157, 1165 (CA9 2008). And an information content pro-vider is not just the primary author or creator; it is anyone“responsible, in whole or in part, for the creation or devel-opment” of the content. §230(f )(3) (emphasis added).
But from the beginning, courts have held that §230(c)(1) protects the “exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.” E.g., Zeran, 129 F. 3d, at 330 (emphasis added); cf. id., at 332 (stating also that §230(c)(1) protects the decision to “edit”). Only later did courts wres-tle with the language in §230(f )(3) suggesting providers areliable for content they help develop “in part.” To harmonize that text with the interpretation that §230(c)(1) protects “traditional editorial functions,” courts relied on policy ar-guments to narrowly construe §230(f )(3) to cover only sub-stantial or material edits and additions. E.g., Batzel v. Smith, 333 F. 3d 1018, 1031, and n. 18 (CA9 2003) (“[A] cen-tral purpose of the Act was to protect from liability service providers and users who take some affirmative steps to edit the material posted”).
Under this interpretation, a company can solicit thou-sands of potentially defamatory statements, “selec[t] and edi[t] . . . for publication” several of those statements, add
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commentary, and then feature the final product promi-nently over other submissions—all while enjoying immun-ity. Jones v. Dirty World Entertainment Recordings LLC, 755 F. 3d 398, 403, 410, 416 (CA6 2014) (interpreting “de-velopment” narrowly to “preserv[e] the broad immunity th[at §230] provides for website operators’ exercise of tradi-tional publisher functions”). To say that editing a state-ment and adding commentary in this context does not“creat[e] or develo[p]” the final product, even in part, isdubious.
C The decisions that broadly interpret §230(c)(1) to protect
traditional publisher functions also eviscerated the nar-rower liability shield Congress included in the statute. Sec-tion 230(c)(2)(A) encourages companies to create content guidelines and protects those companies that “in good faith . . . restrict access to or availability of material that the pro-vider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objec-tionable.” Taken together, both provisions in §230(c) mostnaturally read to protect companies when they unknow-ingly decline to exercise editorial functions to edit or remove third-party content, §230(c)(1), and when they decide to ex-ercise those editorial functions in good faith, §230(c)(2)(A).
But by construing §230(c)(1) to protect any decision to edit or remove content, Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1105 (CA9 2009), courts have curtailed the limitsCongress placed on decisions to remove content, see e-ven-tures Worldwide, LLC v. Google, Inc., 2017 WL 2210029, *3 (MD Fla., Feb. 8, 2017) (rejecting the interpretation that§230(c)(1) protects removal decisions because it would “swallo[w] the more specific immunity in (c)(2)”). With no limits on an Internet company’s discretion to take down ma-terial, §230 now apparently protects companies who ra-cially discriminate in removing content. Sikhs for Justice,
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Inc. v. Facebook, Inc., 697 Fed. Appx. 526 (CA9 2017), aff ’g144 F. Supp. 3d 1088, 1094 (ND Cal. 2015) (concluding that“ ‘any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online isperforce immune’ ” under §230(c)(1)).
D Courts also have extended §230 to protect companies
from a broad array of traditional product-defect claims. In one case, for example, several victims of human traffickingalleged that an Internet company that allowed users to post classified ads for “Escorts” deliberately structured its web-site to facilitate illegal human trafficking. Among otherthings, the company “tailored its posting requirements to make sex trafficking easier,” accepted anonymous pay-ments, failed to verify e-mails, and stripped metadata fromphotographs to make crimes harder to track. Jane Doe No. 1 v. Backpage.com, LLC, 817 F. 3d 12, 16–21 (CA1 2016).Bound by precedent creating a “capacious conception ofwhat it means to treat a website operator as the publisher or speaker,” the court held that §230 protected these web-site design decisions and thus barred these claims. Id., at 19; see also M. A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1048 (ED Mo. 2011).
Consider also a recent decision granting full immunity toa company for recommending content by terrorists. Force v. Facebook, Inc., 934 F. 3d 53, 65 (CA2 2019), cert. denied,590 U. S. —— (2020). The court first pressed the policy ar-gument that, to pursue “Congress’s objectives, . . . the text of Section 230(c)(1) should be construed broadly in favor ofimmunity.” 934 F. 3d, at 64. It then granted immunity,reasoning that recommending content “is an essential re-sult of publishing.” Id., at 66. Unconvinced, the dissent noted that, even if all publisher conduct is protected by§230(c)(1), it “strains the English language to say that in
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targeting and recommending these writings to users . . . Fa-cebook is acting as ‘the publisher of . . . information pro-vided by another information content provider.’ ” Id., at 76– 77 (Katzmann, C. J., concurring in part and dissenting inpart) (quoting §230(c)(1)).
Other examples abound. One court granted immunity ona design-defect claim concerning a dating application thatallegedly lacked basic safety features to prevent harass-ment and impersonation. Herrick v. Grindr LLC, 765 Fed. Appx. 586, 591 (CA2 2019), cert. denied, 589 U. S. —— (2019). Another granted immunity on a claim that a socialmedia company defectively designed its product by creating a feature that encouraged reckless driving. Lemmon v. Snap, Inc., 440 F. Supp. 3d 1103, 1107, 1113 (CD Cal. 2020).
A common thread through all these cases is that the plaintiffs were not necessarily trying to hold the defendants liable “as the publisher or speaker” of third-party content. §230(c)(1). Nor did their claims seek to hold defendants li-able for removing content in good faith. §230(c)(2). Their claims rested instead on alleged product design flaws—thatis, the defendant’s own misconduct. Cf. Accusearch, 570 F. 3d, at 1204 (Tymkovich, J., concurring) (stating that §230 should not apply when the plaintiff sues over a defend-ant’s “conduct rather than for the content of the infor-mation”). Yet courts, filtering their decisions through the policy argument that “Section 230(c)(1) should be construed broadly,” Force, 934 F. 3d, at 64, give defendants immunity.
II Paring back the sweeping immunity courts have read into
§230 would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will un-doubtedly fail. Moreover, States and the Federal Govern-ment are free to update their liability laws to make them
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more appropriate for an Internet-driven society. Extending §230 immunity beyond the natural reading of
the text can have serious consequences. Before giving com-panies immunity from civil claims for “knowingly host[ing] illegal child pornography,” Bates, 2006 WL 3813758, *3, or for race discrimination, Sikhs for Justice, 697 Fed. Appx.,at 526, we should be certain that is what the law demands.
Without the benefit of briefing on the merits, we need not decide today the correct interpretation of §230. But in an appropriate case, it behooves us to do so.