5th Circuit Denies Appellant’s Rehearing En Banc of Section 230 Claims vs. Snap

The 5th U.S. Circuit Court of Appeals, by an 8-7 vote, denied plaintiff-appellant John Doe’s motion for rehearing en banc of the court’s affirmation of the district court’s denial of his Section 230 claims against Snap, said its order Monday (docket 22-20543). The case involved Doe, who was sexually assaulted by his high school teacher when he was 15 years old. His teacher, Bonnie Guess-Mazock, who pleaded guilty to sexual assault, used Snapchat to send him sexually explicit material. Doe sought to hold Snap accountable for its alleged encouragement of that abuse. Bound by the 5th Circuit’s “atextual interpretation” of Section 230, the U.S. District Court for Southern Texas and a panel of this court “rejected his claims at the motion to dismiss stage,” wrote the seven dissenting judges. The en banc court, by a margin of one, voted against revisiting our “erroneous interpretation” of Section 230, “leaving in place sweeping immunity for social media companies that the text cannot possibly bear,” they said. That “expansive immunity” is the result of adopting the too-common practice of reading extra immunity into statues where it doesn’t belong, and relying on policy and purpose arguments to grant sweeping protection to internet platforms, they said. “Declining to reconsider this atextual immunity was a mistake,” they said. Section 230 “closes off one avenue of liability” for social media companies by preventing courts from treating platforms as the “publishers or speakers” of third-party content, they said. “In fact, Section 502 of the Communications Decency Act expressly authorizes distributor liability for knowingly displaying obscene material to minors,” they said. “It strains credulity to imagine that Congress would simultaneously impose distributor liability on platforms in one context, and in the same statute immunize them from that very liability,” they said. “That our interpretation of Section 230 is unmoored from the text is reason enough to reconsider it,” said the dissenting judges. “But it is unmoored also from the background legal principles against which it was enacted,” they said. Doe urged the 5th Circuit “to treat Snap as a distributor and not as a publisher,” they said. Doe states, correctly, that Section 230 was enacted to provide immunity for creators and publishers of information, not distributors, they said. The Communications Decency Act itself authorizes liability for platforms as distributors, they said. But “our overbroad reading of Section 230 renders Doe’s claim dead in the water,” they said.