ANALYSIS: Social Media Immunity Inches Closer to Supreme Court

The US Supreme Court is likely to limit the scope of immunity enjoyed by social media platforms under Section 230 of the Communications Decency Act within the next two terms.

As lawsuits against social media platforms increase, so has the number of cases in which federal district courts have dismissed some or all of plaintiffs’ causes of action on immunity grounds. More recently though, circuit court judges have started to voice concerns about the effects of their court’s precedent granting immunity based on an expansive reading of Section 230, especially as social media and artificial intelligence services continue to grow rapidly.

In the past year, judges in both the Fifth Circuit and the Ninth Circuit have issued opinions separate from the majority that signaled a need for a more limited interpretation of Section 230 immunity, either with the help of Congress or the Supreme Court.

Most recently, on Aug. 27, Judge Paul B. Matey of the Third Circuit issued a rebuke of the current interpretation of Section 230 held by other courts, finding that it “rides in to rescue corporations from virtually any claim loosely related to content posted by a third-party, no matter the cause of action and whatever the provider’s actions.”

The disparity in the interpretation of Section 230 among judges and circuit courts warrants a closer look by Congress or the Supreme Court.

With Congress in an election year, it is likely that the Supreme Court will get there first.

Background: Thomas Applies Pressure

Section 230 of the Communications Decency Act was enacted in 1996. Since then, the statute has appeared in nearly 500 federal court opinions but has yet to be interpreted by the Supreme Court.

In 2020, Justice Clarence Thomas did, however, express concerns about the prevailing interpretation of Section 230 in Malwarebytes, Inc. v. Enigma Software Grp.

Enigma and Malwarebytes were software competitors. Enigma filed a lawsuit against Malwarebytes, claiming that “Malwarebytes engaged in anticompetitive conduct by reconfiguring its products to make it difficult for consumers to download and use Enigma products.”

Malwarebytes filed a motion to dismiss, claiming that under Section 230, it 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 district court found that Malwarebytes was entitled to immunity under Section 230 and granted its motion to dismiss. The Ninth Circuit, however, reversed the district court’s decision, and concluded that immunity is unavailable when a plaintiff alleges anticompetitive conduct.

Malwarebytes petitioned the Supreme Court to review the issue of Section 230 immunity, but the petition was denied. In a statement in conjunction with the denial of certiorari, Thomas voiced his discontent with the sweeping immunity courts have read into Section 230. He seemed to call for an “appropriate case,” where the Supreme Court could “consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.”

Increase in Dismissals on Immunity Grounds

Thomas’s disapproving tone in Malwarebytes didn’t dissuade district courts from dismissing cases on immunity grounds. Instead, dismissals have continued to rise since the Malwarebytes ruling, many of which have been affirmed by the circuit courts. In doing so, the circuit courts have created a precedent that may no longer be appropriate for the times, requiring Supreme Court intervention.

An analysis of Bloomberg Law’s Court Opinions shows that since the October 2020 statement in Malwarebytes, there have been 61 cases in which all or some of the causes of action were dismissed on immunity grounds. Twenty of them have gone on to appellate review, with only a handful able to reach the Supreme Court.

Within two years of Thomas’ statement in Malwarebytes, the Supreme Court denied certiorari in three cases—all involving Facebook as a defendant.

In Doe v. Facebook, for example, a 15-year-old sued Facebook for violating Texas’s anti-sex-trafficking statute and for various common-law offenses, after she was lured on the platform by a sexual predator, who repeatedly raped, beat, and trafficked the minor for sex. The lower court determined that Facebook was immune from liability under Section 230.

Thomas issued a statement in that case, too. Although he agreed with the denial of certiorari due to jurisdictional issues, Thomas again beckoned for an appropriate case to clarify the scope of Section 230 immunity, before courts “close the door on such serious charges.”

In the 2022–2023 term, the Supreme Court considered two cases out of the Ninth Circuit, Twitter, Inc. v. Taamneh and Gonzalez v. Google, that touched on the issue of Section 230 immunity. The cases shared common allegations that Twitter and Google’s affiliate YouTube allowed the terrorist group ISIS to use their platforms and algorithms as tools for recruiting, fundraising, and spreading propaganda. The cases further alleged that the platforms profited off of associated advertisements placed on ISIS’s tweets, posts, and videos.

Ultimately, the Supreme Court took issue with the viability of plaintiffs’ claims under Section 2333 of the Anti-Terrorism Act, and did not address the application of Section 230.

In the most recent term, the Supreme Court heard three cases pertaining to the conduct of social media platforms, though none of them reached the question of immunity under Section 230.

For the next term, the Supreme Court has already denied certiorari in Doe v. Snap, Inc., where Snapchat was found immune from liability in a negligent design case filed by a minor who was sexually assaulted.

Best Bets for Review

The search continues for an appropriate case that would pave the way for the Supreme Court to limit the scope of Section 230 immunity. Based on the current landscape of cases, those asserting product liability causes of action have the most likely chance, as they attempt to allege negligence on the part of the social media platforms independent of any third-party content.

Notably, within a week of each other, the Ninth Circuit and Third Circuit issued diverging opinions on how they would treat product liability causes of action under Section 230.

Estate of Carson Bride v. Yolo Technologies, Inc.

The Ninth Circuit decided Estate of Carson Bride v. Yolo Technologies, Inc. on Aug. 22. The case arises from the suicide of a 16-year-old who suffered months of cyber-bullying while using YOLO, a social media application that integrates one-sided anonymous messaging on Snapchat, hiding the identity of the sender of the message. The victim’s estate, along with other similarly harmed plaintiffs, asserted claims of misrepresentation and product liability based on the application’s design and failure to warn. The product liability claims allege that YOLO is “inherently dangerous because of its anonymous nature and that it was negligent for YOLO to ignore the history of the teen suicides stemming from cyberbullying on anonymous apps.” The misrepresentation claims, on the other hand, are based on allegations that YOLO assured users that bullying and harassing behavior would result in the offending user being banned and unmasked, but YOLO failed to do so, despite repeated requests by the plaintiffs.

The lower court found that all of the plaintiffs’ claims fundamentally sought to hold the defendants liable for content published by anonymous third parties, and dismissed the case on immunity grounds.

In its review, the Ninth Circuit observed that Section 230 immunity applies when the cause of action, regardless of its name, inherently requires the court to treat the defendant as the publisher of third-party content, and that the act of publication includes “reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” Therefore, the court opined that the proper analysis requires the court to evaluate whether the duty underlying the cause of action is derived “from the defendant’s status or conduct as a publisher or speaker.”

The court agreed that Section 230 immunizes YOLO from liability on the product liability causes of action, because the claims attempted to hold YOLO responsible for users’ speech or YOLO’s decision to publish it. The court, however, found that the misrepresentation claim survives, because it seeks to enforce a promise made by YOLO, separate and apart from any third-party content, that it would unmask and ban users who violated its terms of service.

The plaintiffs could petition the Supreme Court to consider whether Section 230 bars the product liability causes of action. The petition for certiorari would need to be filed within 90 days from the entry of the judgment by the lower court, or from the lower court’s denial of a petition for rehearing.

Anderson v. TikTok, Inc.

A mere five days after the Ninth Circuit decision, the Third Circuit issued a contrasting opinion, Anderson v. TikTok Inc.,on Aug. 27. This product liability case involves allegations that TikTok targeted the plaintiffs’ 10-year-old daughter through its algorithm, recommending to her the Blackout Challenge, despite TikTok knowing that the social media trend encouraged users to choke themselves until they passed out. The plaintiffs’ daughter died from the Blackout Challenge, and the plaintiffs pursued claims of strict products liability and negligence against TikTok.

The district court dismissedthe case on grounds that TikTok was immune from liability under Section 230. The Third Circuit, however, disagreed with the lower court’s decision, and found that TikTok’s algorithm, which recommended the Blackout Challenge, was TikTok’s “own expressive activity.”

In order to reach this conclusion, the Third Circuit relied on the Supreme Court’s recent observations in Moody v. NetChoice, LLC that social media “platforms engage in protected first-party speech under the First Amendment when they curate compilations of others’ content via their expressive algorithms.” The Third Circuit then concluded that the platform’s curation through their expressive algorithm also constitutes first-party speech, causing them to lose immunity under Section 230. This presents a stark contrast from the Ninth Circuit’s duty analysis in Bride.

It may not behoove TikTok to appeal this decision, especially if there is a strong possibility that the Supreme Court reins in Section 230 immunity. Most cases involving social media platforms are filed in the Ninth Circuit anyway, where it seems that, for now, the broad interpretation of Section 230 immunity continues to favor the platforms. If TikTok does appeal, the case would be demonstrative of the circuit split on where to draw the line between a platform’s own conduct and that derived from its status as a publisher of third-party content.

Outstanding Appeals

Aside from these two cases, there are currently three other Section 230 appeals pending at the Ninth Circuit, including one that involves product liability causes of action.

Doe v. Twitter

In Doe v. Twitter, the Ninth Circuit is considering whether the lower court erred in finding Twitter immune from liability for allegedly creating an unreasonably dangerous product, knowing or recklessly disregarding that the plaintiffs were being sex trafficked on its platform, and knowingly benefiting from a sex-trafficking venture, among other claims. The case, which has not been argued yet, could reach the Supreme Court in 2026.

Planet Green Cartridge, Inc. v. Amazon.com, Inc.

In Planet Green Cartridge, Inc. v. Amazon.com, Inc., the plaintiff appealed the dismissal of its complaint to the Ninth Circuit. In their complaint, the plaintiff asserted claims of false advertising against the Amazon defendants for allowing third parties to sell ink cartridges falsely advertised as “remanufactured” or “recycled” on Amazon’s website. The plaintiff argued in its appeal that despite detailed allegations of “Amazon’s direct involvement in the promotion, importation, distribution and sale of misrepresented ink cartridges,” the district court still found the Amazon defendants immune from liability under Section 230. Oral arguments will likely occur this November, potentially putting this case before the Supreme Court in 2026.

Loomer v. Zuckerberg

The plaintiff in Loomer v. Zuckerberg has asked the Ninth Circuit to review the dismissal of a former congressional candidate’s lawsuit against Twitter, Facebook, and others for banning her from the platforms based on the theory that the platforms unlawfully censor conservative voices and interfere with American elections. This case will be argued in October. If a petition for writ of certiorari is filed with the Supreme Court, it likely won’t be until 2026.

Whether it is one of these five appellate cases, or one the many district court cases further down the pipeline, it’s very likely that the Supreme Court will take on the issue of Section 230 immunity in the next couple of years. The right case needs to present itself, though: one in which the social media platform’s own misconduct is evident and can be parsed from their status or conduct as a publisher or speaker.

Other Supreme Court cases covered in the report are: AMG Capital Management v. FTC (2021); West Virginia v. EPA (2022); and Coinbase v. Bielski (2023) .

The full report is available for download here for nonsubscribers. Subscribers can directly access the report from our Bloomberg Law Reports page.

Bloomberg Law subscribers can find related content on our Litigation Practical Guidance Library page and our In Focus: Social Media resource.

If you’re reading this on the Bloomberg Terminal, please run BLAW OUT in order to access the hyperlinked content, or click here to view the web version of this article.