SCOTUS Rejects Malwarebytes Certiorari, Justice Thomas Invites Section 230 Case

On Tuesday, the United States Supreme Court denied Malwarebytes, Inc.’s petition for a writ of certiorari and issued a statement by Justice Clarence Thomas. The commentary conveyed Justice Thomas’s opinion that although he agreed with the decision to leave the appellate ruling intact, the high court should accept an opportunity to interpret Section 230 of the Communications Decency Act, which has reportedly permitted major internet companies to dodge liability for damaging content created and posted by third-parties. 

By passing on the petition, the Supreme Court leaves in place a Ninth Circuit Court ruling denying Malwarebytes Section 230 immunity. The instant case involves two competitors that provide software enabling individuals to filter unwanted content, like that which poses security risks. Enigma Software Group USA, LLC sued Malwarebytes, accusing it of altering its products to make it more difficult for consumers to obtain and use Enigma products.

In the course of litigation, Malwarebytes raised a Section 230 defense, claiming that “a computer service provider cannot be held liable for providing tools ‘to restrict access to material’ that it ‘considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’” The Ninth Circuit rejected this argument, finding that based on Section 230’s policy and purpose, immunity is unavailable to a defendant suspected of anticompetitive behavior, Justice Thomas explained.

Before addressing his concerns regarding Section 230 interpretation, Justice Thomas noted that this decision is one of few that have relied on policy and purpose to deny immunity, yet its decision to stress policy and purposes is not unfamiliar, he wrote. The Justice further remarked that “courts have long emphasized non-textual arguments when interpreting §230, leaving questionable precedent in their wake.”

In his critique of Section 230 case law, Justice Thomas wrote that “courts have discarded the longstanding distinction between ‘publisher’ liability and ‘distributor’ liability,” though he noted that some overlap still exists. He also expressed his view that “courts have also departed from the most natural reading of the text by giving Internet companies immunity for their own content.” Yet, decisions broadly interpreting Section 230(c)(1) to protect traditional publisher functions have “also eviscerated the narrower liability shield Congress included in the statute,” he reasoned, reading Sections 230(c)(2)(A) and (c)(1) in concert.

His statement also reflected concern about courts’ extension of Section 230 immunity to shield companies from a wide array of traditional product-defect claims. In support of his contention, the Justice cited multiple examples where various types of claims were dismissed due to grants of Section 230 immunity.

“Paring back the sweeping immunity courts have read into §230,” Justice Thomas suggested, would give plaintiffs a chance to have their claims heard for their substance. He concluded, “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.”