From Doe v. Snap, Inc., filed Monday, following and repeatedly quoting Justice Thomas's separate statement respecting denial of certiorari in Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC (2020):
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. {Doe's teacher, Bonnie Guess-Mazock, pleaded guilty to sexual assault.} His teacher used Snapchat to send him sexually explicit material. Doe sought to hold Snap, Inc. (the company that owns Snapchat) accountable 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 erroneous 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 statutes where it does not belong" and "rel[ying] on policy and purpose arguments to grant sweeping protection to Internet platforms." Declining to reconsider this atextual immunity was a mistake.
