The Supreme Court Declines Another Opportunity to Consider Section 230

Just twelve days after Supreme Court of the United States issued a per curiam decision in Gonzalez v. Google LLC, in which the Court declined to address the application of §230 of the Communications Decency Act, 47 U.S. §230(c)(1)  (“§230”) (discussed in the June 2, 2023 Trending Law Blog post) to social media platforms, the Supreme Court denied certiorari in the matter of Jane Does v. Reddit, Inc., a case decided on October 24, 2022 by the United States Court of Appeals for the Ninth Circuit. In Reddit, parents and/or victims sued Reddit, a social media platform, after users of Reddit posted sexually explicit images and videos of minors on the site. The plaintiffs claimed Reddit was liable under the federal sex trafficking statute as a beneficiary of child pornography because Reddit financially benefitted from hosting the content. The district court dismissed the action and the Ninth Circuit affirmed, both courts finding that §230 protected Reddit from liability.

In reaching its decision, the Ninth Circuit determined that §230 would protect Reddit from liability for its user-posted content unless the content violated FOSTA, the Allow States and Victims to Fight Online Sex Trafficking Act of 2018. Reddit argued that it could only be held liable under FOSTA for its own criminal conduct; plaintiffs argued Reddit should be held liable as a beneficiary when one of Reddit’s users violated FOSTA. After reviewing the plain text of FOSTA, as well as cases interpreting similar statutes, the Ninth Circuit held that “a website can only be held liable if its own conduct – not a third party’s – violates” the statute. The court also found that FOSTA required Reddit to have “knowingly” participated in or benefitted from sex trafficking but that the plaintiffs had not even alleged such conduct. Accordingly, the Ninth Circuit affirmed dismissal of the action.

On January 23, 2023, plaintiffs petitioned the Supreme Court for a writ of certiorari.  The Court denied the Petition on May 30, 2023.

In denying the petition, the Supreme Court declined yet another opportunity to consider the issue of a social media platform’s immunity under §230. Whether the Court will grant the Petitions discussed in the November 17, 2022 Trending Law Blog is still an open question that remains unanswered at this time.

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For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.