(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Alison Frankel

March 11 (Reuters) - A Texas high schooler whose science

teacher allegedly used Snapchat to draw him into a sexual

relationship has asked the U.S. Supreme Court to revisit the

scope of a federal law immunizing internet publishers from

liability for users' content.

The unnamed teen, whose teacher pleaded guilty to sexual

assault in 2022, told the Supreme Court in a petition filed last

week that the federal immunity law, Section 230 of the

Communications Decency Act, has for too long been misread to

shield internet publishers from all responsibility involving

user-generated content, even when plaintiffs seek to hold

companies like Snap responsible for their own conduct

in designing, managing and promoting their platforms.

Every federal appeals court except for the 7th U.S. Circuit

Court of Appeals adopted this overly broad view of Section 230

immunity in the early days of the internet, the petition said,

leaving courts bound by short-sighted precedent. But appellate

judges recently have begun voicing concerns about the prevailing

interpretation of the immunity law, the petition argued.

In the Texas teen's case, for instance, seven 5th Circuit

judges voted last year to reconsider that court's expansive view

of Section 230's shield - but they were outvoted, as I told you,

by eight colleagues who declined to review 5th Circuit precedent

granting broad immunity to online platforms.

Among the most vocal skeptics of sweeping protection for

internet companies is Supreme Court Justice Clarence Thomas, who

has issued two recent calls for the justices to decide whether

Section 230 shields internet companies from claims based on

their conduct as the distributors - rather than publishers - of

user-generated content.

The Supreme Court, as you may recall, granted review in a

2022 case presenting a similar question about the scope of

Section 230 immunity, but ended up sidestepping the issue.

"The import of the question presented is clear," wrote the

Texas teen's Supreme Court counsel, Tillman Breckenridge of

Stris & Maher. "Social media companies must be held accountable

for the harms they are imposing on America's youth through their

own misconduct. But only this court can remove the atextual

immunity that lower courts have read into Section 230."

Snap did not respond to my query on the petition. But it's

notable that the company is itself calling for appellate review

of the scope of Section 230 immunity - though it is asserting

precisely the opposite argument, in a California state appeals

court, as the Texas teen seeking Supreme Court review.

Snap is pushing back against a state trial judge's ruling

that Section 230 does not shield the company from design defect

claims by parents of children who overdosed on fentanyl

allegedly supplied by drug traffickers using Snap to connect

with buyers.

The trial judge, Lawrence Riff of Los Angeles Superior

Court, held that allegedly defective Snap design features,

including ephemeral messaging, live mapping and inadequate

parental controls, are outside the bounds of Section 230

protection. As I told you last month, his ruling was one of

several recent decisions allowing plaintiffs to move ahead with

product liability claims against internet companies that

allegedly harmed users in the design or operation of their

platforms.

In a mandamus petition filed earlier this month in

California's 2nd District Court of Appeal, Snap lawyers from

Morrison & Foerster and Shook Hardy & Bacon argued that Riff

erroneously indulged "creative pleading" by plaintiffs' lawyers

who deliberately crafted their complaint to circumvent Section

230's prohibition on claims involving user-generated content.

(Snap also denies that its design enabled drug sales and says it

is committed to removing bad actors from its platform.)

California state and federal courts, Snap said in the

mandamus petition, have already rejected similar end runs around

the immunity law in cases attempting to hold platforms liable

for such features as age verification systems and algorithms

that determine which videos can contain advertising. That

precedent, the company said, makes clear that plaintiffs cannot

evade Section 230 by reframing allegations about internet

platforms' editorial decisions as product liability claims.

"Where the gravamen of a complaint is that third-party

content harmed the plaintiffs, they cannot circumvent Section

230 merely by naming a platform's features that allowed them to

view the content," Snap told the state appeals court.

"Otherwise, Section 230 would be read out of existence: Every

online platform makes choices about how content will be shared

or communications exchanged, and plaintiffs can always identify

some way in which those features interacted with third-party

content."

Snap's petition has attracted support from noteworthy amici.

The Electronic Frontier Foundation; the Chamber of Progress and

NetChoice; and internet law expert Eric Goldman of the Santa

Clara University School of Law all urged the appeals court to

grant Snap's request for review of Riff's ruling, emphasizing

the high stakes of any erosion of Section 230 immunity.

Hogan Lovells, which represents the Chamber of Progress and

NetChoice, told the appeals court that Riff's decision "renders

Section 230 nearly meaningless, creating confusion and inviting

frivolous litigation against internet services that Section 230

is meant to prevent."

The intermediate appeals court agreed last week to allow the

amicus briefs to be filed. It also granted Snap's request to

stay proceedings before Riff until it has resolved the mandamus

petition.

Neither Snap counsel James Sigel of Morrison & Foerster nor

plaintiffs lawyer Matthew Bergman of the Social Media Victims

Law Center responded to my email on Snap's mandamus bid, but the

stay grant suggests the appeals court is at least giving serious

thought to Snap's petition.

Ironically, Snap's mandamus petition in the California case

could end up benefiting the Texas plaintiff seeking Supreme

Court review. Snap and its supporters, after all, told the state

appeals court that it must step in to avert mayhem over the

scope of Section 230 immunity. I don't see how the company can

turn around and tell the U.S. justices with a straight face that

there's no need for them to take up the same issue.

Read more:

Internet immunity shield gets another dent in fentanyl

victims' case against Snap

Abused teen's case against Snap could be headed to the US

Supreme Court

Social media companies must face youth addiction lawsuits,

US judge rules