United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
December 18, 2023
No. 22-20543 Lyle W. Cayce
____________ Clerk
John Doe, through Next Friend Jane Roe,
Plaintiff—Appellant,
versus
Snap, Incorporated, doing business as Snapchat, L.L.C., doing
business as Snap, L.L.C.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-590
______________________________
PUBLISHED ORDER
Before Higginbotham, Graves, and Douglas, Circuit Judges.
Per Curiam:
The court having been polled at the request of one of its members, and
a majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), on the
Court’s own motion, rehearing en banc is DENIED.
In the en banc poll, seven judges voted in favor of rehearing (Judges
Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, and Wilson), and eight
judges voted against rehearing (Chief Judge Richman and Judges Jones,
No. 22-20543
Stewart, Southwick, Haynes, Graves, Higginson, and Douglas). Judges Ho
and Ramirez did not participate in the poll.
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Jennifer Walker Elrod, Circuit Judge, joined by Smith, Willett,
Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges,
dissenting from denial of rehearing en banc:
John Doe was sexually abused by his high school teacher when he was
15 years old.1 His teacher used Snapchat to send him sexually explicit mate-
rial. Doe sought to hold Snap, Inc. (the company that owns Snapchat) ac-
countable for its alleged encouragement of that abuse. Bound by our circuit’s
atextual interpretation of Section 230 of the Communications Decency Act,
the district court and a panel of this court rejected his claims at the motion to
dismiss stage.
The en banc court, by a margin of one, voted against revisiting our er-
roneous interpretation of Section 230, leaving in place sweeping immunity
for social media companies that the text cannot possibly bear. That expansive
immunity is the result of “[a]dopting the too-common practice of reading
extra immunity into statues where it does not belong” and “rel[ying] on pol-
icy and purpose arguments to grant sweeping protection to Internet plat-
forms.” Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13,
15 (2020) (internal citation omitted) (Thomas, J., statement respecting de-
nial of certiorari). Declining to reconsider this atextual immunity was a mis-
take.
I
The analysis must begin with the text. Section 230 states in relevant
part that “[n]o provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another
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1
Doe’s teacher, Bonnie Guess-Mazock, pleaded guilty to sexual assault. See Plea
Acceptance, Texas v. Guess-Mazock, No. 22-05-06072 (359th Dist. Ct., Montgomery
County, Tex. May 12, 2022).
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information content provider.” 47 U.S.C. § 230(c)(1). It further prohibits
interactive computer services from being held liable simply for restricting ac-
cess to “material that the provider or user considers to be obscene, lewd, las-
civious, filthy, excessively violent, harassing, or otherwise objectionable . . .”
or for providing individual users with the capability to filter such content
themselves. 47 U.S.C. § 230(c)(2). In other words, Section 230 closes off
one avenue of liability by preventing courts from treating platforms as the
“publishers or speakers” of third-party content.2 Sub-section (c)(1) and
(c)(2) say nothing about other avenues to liability such as distributor liability
or liability for the platforms’ own conduct.
In fact, Section 502 of the Communications Decency Act expressly
authorizes distributor liability for knowingly displaying obscene material to
minors. 47 U.S.C. § 223(d); see Adam Candeub, Reading Section 230 as
Written, 1 J. of Free Speech L. 139, 157 (2021) (citing Malwarebytes, 141 S. Ct.
at 15 (Thomas, J., statement respecting denial of certiorari)). This includes
displaying content created by a third-party. 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. See Malwarebytes, 141 S. Ct. at 15 (Thomas, J., statement respecting
denial of certiorari).
Without regard for this text and structure, and flirting dangerously
with legislative purpose, our court interpreted Section 230 over a decade ago
to provide broad-based immunity, including against design defect liability
and distributor liability. Doe v. MySpace, Inc., 528 F.3d 413, 421 (5th Cir.
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2
Publishers are traditionally liable for what they publish as if it were their own
speech. Distributors are liable for illicit conduct that they had knowledge of. See Eugene
Volokh, Treating Social Media Platforms Like Common Carriers?, 1 J. of Free Speech L. 377,
455 (2021) (explaining the distinction between publishers and distributors).
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2008) (“To achieve that policy goal, Congress provided broad immunity
under the CDA to Web-based service providers.”).
“Courts have also departed from the most natural reading of the text
by giving Internet companies immunity for their own content.”
Malwarebytes, 141 S. Ct. at 16 (Thomas, J., statement respecting denial of
certiorari). For example, our circuit previously held that Section 230
protects platforms from traditional design defect claims. See MySpace, 528
F.3d at 421 (“[Plaintiffs’] claims are barred by the CDA, notwithstanding
their assertion that they only seek to hold MySpace liable for its failure to
implement measures that would have prevented Julie Doe from
communicating with” her eventual attacker.). This is notably different from
the Ninth Circuit’s interpretation, which has allowed some design defect
claims to pass the motion to dismiss stage. See Lemmon v. Snap, Inc., 995 F.3d
1085, 1094 (9th Cir. 2021) (citation omitted) (holding that Snap is not
entitled to immunity under Section 230 for claims arising out of the
“‘predictable consequences of’ designing Snapchat in such a way that it
allegedly encourages dangerous behavior”).
Immunity from design defect claims is neither textually supported nor
logical because such claims fundamentally revolve around the platforms’
conduct, not third-party conduct. Nowhere in its text does Section 230
provide immunity for the platforms’ own conduct. Here, Doe brings a design
defect claim. He alleges that Snap should have stronger age-verification
requirements to help shield minors from potential predators. He further
alleges that because “reporting child molesters is not profitable,” Snap
“buries its head in the sand and remains silent.” Product liability claims do
not treat platforms as speakers or publishers of content. “Instead, Doe seeks
to hold Snap liable for designing its platform to encourage users to lie about
their ages and engage in illegal behavior through the disappearing message
feature.”
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That our interpretation of Section 230 is unmoored from the text is
reason enough to reconsider it. But it is unmoored also from the background
legal principles against which it was enacted.
Congress did not enact Section 230 in a vacuum. Congress used the
statutory terms “publisher” and “speaker” against a legal background that
recognized the separate category of “distributors.” Malwarebytes, 141 S. Ct.
at 14 (Thomas, J., statement respecting denial of certiorari). Just a year prior
to the enactment of the Communications Decency Act, for example, a New
York state court held an internet message board liable as a publisher of the
defamatory comments made by third-party users of the site, declining to treat
the platform as a distributor. Stratton Oakmont, Inc. v. Prodigy Servs. Co.,
1995 WL 323710, *3–*4 (Sup. Ct. N.Y., May 24, 1995). The distinction is
relevant because distributors are only liable for illegal content of which they
had or should have had knowledge. Section 230 merely directs courts not to
treat platforms as publishers of third-party content.
In addition to pressing a design defect claim, Doe urged this court to
treat Snap as a distributor and not as a publisher. Doe states, correctly, that
Section 230 was enacted “to provide immunity for creators and publishers of
information, not distributors.” The Communications Decency Act itself
authorizes liability for platforms as distributors. 47 U.S.C. § 223(d). But
again, our overbroad reading of Section 230 renders Doe’s claim dead in the
water.
Congress drafted a statute precluding a particular avenue to liability,
while leaving others, such as design defect and distributor liability,
untouched. Our court upset that balance, leaving plaintiffs like Doe without
recourse for a host of conduct Congress did not include in the text.
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II
Deviation from statutory text is often justified by some using an appeal
to the needs of a changing world. See, e.g., Hively v. Ivy Tech. Cmty. Coll. of
Ind., 853 F.3d 339, 352 (7th Cir. 2017) (Posner, J. concurring)
(“[I]nterpretation can mean giving a fresh meaning to a statement . . . a
meaning that infuses the statement with vitality and significance
today. . . . [C]all it judicial interpretive updating . . . .”). Our jurisprudence
on Section 230 perhaps shows why such attempts at judicial policymaking are
as futile as they are misguided. For here, our atextual transformation of
Section 230 into a blunt instrument conferring near-total immunity has
rendered it particularly ill-suited to the realities of the modern internet.
As the internet has exploded, internet service providers have moved
from “passive facilitators to active operators.”3 They monitor and monetize
content, while simultaneously promising to protect young and vulnerable
users. For example, Snap itself holds itself out to advertisers as having the
capability to target users based on “location demographics, interests,
devices . . . and more!”4
Today’s “interactive computer services” are no longer the big
bulletin boards of the past. They function nothing like a phone line. Rather,
they are complex operations offering highly curated content. Section 230
defines information content providers as “any person or entity that is
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3
Large, modern-day internet platforms are more than willing to remove, suppress,
flag, amplify, promote, and otherwise curate the content on their sites in order to cultivate
specific messages. See Missouri v. Biden, 83 F.4th 350, 392 (5th Cir. 2023), cert. granted,
No. 23-411, 2023 WL 6935337 (S. Ct. Oct. 20, 2023) (finding numerous platforms likely
restricted protected speech on their sites as a result of government pressure).
4
Complaint, Doe v. Snap, Inc., 4:22-cv-00590, 11 (S.D. Tex. 2022) (citing
Snapchat, Why Advertise on Snapchat?, Snap, Inc., shorturl.at/pHP23 (last visited
February 16, 2022)).
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responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer
service.” 47 U.S.C. § 230(f)(3) (emphasis added). Where platforms take
this content curation a step further, so as to become content creation, they
cannot be shielded from liability.
Power must be tempered by accountability. But this is not what our
circuit’s interpretation of Section 230 does. On the one hand, platforms have
developed the ability to monitor and control how all of us use the internet,
exercising a power reminiscent of an Orwellian nightmare.5 On the other,
they are shielded as mere forums for information, which cannot themselves
be held to account for any harms that result. This imbalance is in dire need
of correction by returning to the statutory text. Doe alleges that Snap
monitors content in order to “prohibit . . . explicit content.” Where such
oversight results in knowledge of illegal content, platforms should not be
shielded from liability as distributors.
III
The Supreme Court has repeatedly warned us that a “denial of
certiorari does not constitute an expression of any opinion on the merits.”
Boumediene v. Bush, 549 U.S. 1328, 1329 (2007) (Stevens & Kennedy, JJ.,
statement respecting denial of certiorari). We missed an opportunity to heed
the Supreme Court’s warning. As a result, it is once again up to our nation’s
highest court to properly interpret the statutory language enacted by
Congress in the Communications Decency Act.
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5
“Always the eyes watching you and the voice enveloping you. Asleep or awake,
working or eating, indoors or out of doors, in the bath or in bed – no escape. Nothing was
your own except the few cubic centimetres inside your skull.” George Orwell, 1984, 25
(Penguin Classics, 2021).
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“Paring back the sweeping immunity courts have read into § 230
would not necessarily render defendants liable for online misconduct. It
simply would give plaintiffs a chance to raise their claims in the first place.”
Malwarebytes, 141 S. Ct. at 18 (Thomas, J., statement respecting denial of
certiorari). Doe’s claims have been denied under the Communications
Decency Act at the motion to dismiss stage, without even the chance for
discovery. Importantly, we have categorically barred not only Doe, but every
other plaintiff from litigating their claims against internet platforms. Before
granting such powerful immunity, “we should be certain that is what the law
demands.” Id. I am far from certain.
* * *
With respect for my colleagues on our divided court, we should have
granted rehearing en banc to reconsider our interpretation of Section 230 of
the Communications Decency Act.
9