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What the Bostock Decision Teaches About Section 230

· August 31, 2020

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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.


Frustrated that people were making the law without asking her for her opinion, Cathy Gellis gave up a career as a web developer to become a lawyer so that she could help them not make it badly, especially where it came to technology.  A former aspiring journalist and longtime fan of free speech her legal work includes defending the rights of Internet users and advocating for policy that protects online speech and innovation.  She also writes about the policy implications of technology regulation on sites such as the Daily Beast, Law.com, and Techdirt.com, where she is a regular contributor. 

Competition

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