Did Amazon Pull Clarence Thomas Documentary Off Their Site in Order to Pull Him Off Their Case?

“The job of a judge is to figure out what the law says, not what he wants it to say. There is a difference between the role of a judge and that of a policy maker... Judging requires a certain impartiality.” 

Supreme Court Justice Clarence Thomas is reported to have made this comment in “’in the Wall Street Journal,’ Conversation with Dinesh D'Souza, July 2, 1991.”   

Does Amazon intend to test Thomas’s word should a Section 230 case come before the Supreme Court; insisting he recuse himself because Amazon’s decision to pull, "Created Equal: Clarence Thomas in His Own Words," from its site creates a conflict of interest?

The possible motives behind Amazon’s decision to take down from its platform the popular documentary about the prominent African-American Supreme Court Justice, especially during Black History Month, has bewildered and astounded many commentators, on the left and on the right, including Mark Paoletta.

Paoletta, “served as a lawyer in the Bush 41 White House Counsel’s Office and worked on the confirmation of Justice Clarence Thomas.  He served as General Counsel of the White House Office of Management and Budget in the Trump administration, and worked on the confirmations of Justices [Neal] Gorsuch and [Brett] Kavanaugh.” 

So when he speculates as to why Amazon would suppress Thomas’s documentary from its Amazon Prime platform, as he did in a recent Daily Caller opinion piece, he does so with a great deal of professional authority and insight.

Paoletta offers two possible motives behind Amazon’s action against “Created Equal.”  Both make very good sense. 

Firstly, he believes, “every factor points to the ideological cancellation of one of the most important voices in America – simply because he is a black conservative voice.”  This might sound like a cynical and incredible explanation to assign to a corporate decision, after all, corporations, even Amazon, generally are driven primarily by profit motive.

But as Paoletta points out, “Created Equal, …has been a top selling DVD in Amazon’s documentary section” therefore, “Amazon’s decision to take this film down…despite intense consumer demand makes no sense from a market-based perspective.”

Alternatively, Paoletta writes, “Then-Sen. Joe Biden, who chaired the Senate confirmation hearings on Thomas’s nomination to the Supreme Court, comes off the worst in Created Equal…Amazon’s owner, Jeff Bezos, also owns the Washington Post, and Amazon may be trying to curry favor with the Biden administration by canceling this film.”

But, in addition to the two very probable motives Mark Paoletta surmises, there is a third, albeit more remote, more sinister, possibility: One that is more directly based on profit motive. It's one that would explain how with ease a nearly trillion-dollar corporation like Amazon would willingly endure consumer backlash and forfeit tremendous immediate gain from a well performing movie, for a chance of some even greater future financial benefit.  

For Jeff Bezos, and Amazon, the mega-digital retail company he founded on a high-stakes gamble, taking down “Create Equal” may just be another. 

The consequences may ultimately mean the preservation of a liberal interpretation of Section 230 of the Communications Decency Act (CDA) of 1996. And for Amazon, the preservation of it is a key component of its business model.

Section 230 of the CDA, most notably, seeks to eliminate or greatly reduce the degree of liability any “provider or user of an interactive computer service,” may face on First Amendment grounds for removing digital content they may, in “good faith” deem to be, “offensive material.”  

Little attention has been given to Section 230 in the 25 years since its creation. However, it has recently been widely condemned as responsible for the way social media companies like Twitter, Facebook, and Google can justify censoring content and viewpoints they disagree with, most usually conservative content, most notably Twitter’s permanent suspension of Donald Trump’s account. 

And while it’s these “Big Three” social media giants that have been given most of the attention and given most of the scrutiny by commentators and lawmakers, Section 230 doesn’t just protect social media outlets. It also protects other digital platforms as Amazon; and its decision to take down, “Created Equal.”

And, while Mark Paoletta is very likely correct in seeing the decision to remove, “Created Equal” as one directly rooted in a willingness to engage in “ideological cancellation,” Amazon also has a less altruistic, less obvious, vital interest in protecting Section 230.

Michael Waters writes in the Modern Retail online publication, that while “[f]or Amazon, Section 230… [a]t most, …insulates Amazon from blame against inaccurate descriptions by third-party sellers or customer reviews posted to its site. But Amazon and other e-commerce platforms have more quietly used the law to protect themselves when a third-party product proves to be faulty.”

Waters continues, “[b]ecause of Section 230, they’ve claimed, they can’t be accountable when a product description fails to warn customers. It’s a tried and true argument that eBay has been using since 2003.” But, “for Amazon things are more difficult. That stems from the prized Fulfillment by Amazon program, or FBA, which lets third-party sellers store their products in Amazon warehouses,” Waters states.

Despite the differences, Waters notes, “[h]istorically, most judges have taken Amazon’s side, ruling that Amazon is a mere facilitator, not a seller, of items that come from third-party vendors.”  But that historical interpretation of Amazon’s business model appears to be losing ground in the courts, most notably in Bolger v. Amazon, a product liability case brought by a customer who allegedly suffered burns from a computer battery purchased on Amazon.

According to Waters, “Amazon tried to invoke Section 230, as other e-commerce platforms have before.” But “[t]he court dismissed the case, pointing to FBA as the key difference: “Amazon’s own involvement in the distribution of an allegedly defective product” — the fact that Amazon processed payment, warehoused the battery and shipped it to the customer — “supports strict liability,” it concluded.”

Amazon subsequently appealed the case to the California Supreme Court; however, the Court denied the request to review the appeal, allowing the lower appellate court’s decision stand.  It’s unknown if Amazon will find it in its best interest or not to make another appeal, this time to the U.S. Supreme Court.

And while Waters quotes, “Rory Van Loo, a professor of law at Boston University,” as saying, “You could get rid of Section 230, and Amazon would be fine,” he also quotes, “Eric Goldman, a professor at the Santa Clara University School of Law,” as stating, “The courts are just split,” and, “There have been other decisions on Amazon’s eligibility for Section 230 throughout the nation, and they’re split as well.”

Jessica Guynn reports in October of 2020, “Supreme Court Justice Clarence Thomas said this month that lower courts have interpreted Section 230 too broadly, giving internet companies “sweeping protections” that were not intended by the statute.”

And most recently, in his April 5, 2021, concurring opinion that, “dismissed a lower court ruling that former President Donald Trump violated the First Amendment rights of critics he blocked on Twitter,” Thomas again seemed to express strong reservations about the very broad liability protections claimed by tech companies under Section 230.

Split decisions on an element of law are precisely the types of cases the U.S. Supreme Court is most apt to accept for review, and it almost seems inevitable that a case involving Amazon and its claim to Section 230 protections may at some point come before the nation’s highest court.  And Thomas seems to be indicating a willingess to give it careful scrutiny.

It's at this point that Amazon’s February 2021, decision to take down “Created Equal: Clarence Thomas in His Own Words” may prove, intentionally or unintentionally, to pay its highest dividends.

Because that action may create for Thomas just enough appearance of a conflict of interest as to call into question his ability to remain impartial, and to generate overwhelming pressure for him to recuse himself from any future case where Amazon is a party, particularly one involving section 230.

And, although the need to rein in Section 230 boundaries is growing in support among members on both the left and the right, including within the Biden-Harris DOJ, it's uncertain in these deeply politically divided times in the U.S., where even the impartiality of the judiciary is being called into question, if the other Supreme Court Justices will be as skeptical, as Thomas seems to be, that Section 230 is inflicting serious damage by stifling free speech and deflecting corporate liability.

Furthermore, Chief Justice John Roberts is more and more frequently joining the Court’s left-wing contingency as the deciding swing vote, which in case, may counter-intuitively prove to put the majority in favor of retaining liberal interpretations of Section 230 protections.

In the end, whether Amazon had as a primary motive for taking down, “Created Equal,” the aim of pressuring Clarence Thomas to recuse himself from any Section 230 case involving Amazon, would be very difficult if not nearly impossible to prove.  And to be very clear, the author is not accusing Amazon of any wrongdoing, nor does he have any evidence to support such an accusation. 

Indeed, any such Thomas recusal would more than likely turn out to be a purely unforeseen, unintended consequence from what was nothing more than intended to be an “ideological cancellation” of a conservative viewpoint, or a way to score political points with the president.  

But at a time when Big Tech is wielding tremendous political power, and some are even accusing it of having sought to influence, if not to interfere with, a presidential election, it’s not beyond the realm of circumstantial speculation, to also perceive that it might also seek to influence which judges and justices hear its cases.  Of course, many, maybe even Amazon, will likely dismiss this all as just yet another right-wing conspiracy theory.  Amazon, of course, could easily dispel all speculation by simply providing public explanation as to why it took down the Thomas documentary.

Regardless, a Thomas’ recusal, based on his own words, would only seem to be increase Amazon’s chances of preserving its product liability protections under Section 230.

Image: Official portrait, public domain, via Wikipedia.

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