How Meta’s Social Media Addiction Case Has Permanently Weakened Section 230

Meta's settlement forecloses early review of a ruling that poses little threat to the tech giant itself but could bury smaller platforms in the litigation costs Section 230 was designed to prevent.

Photo of the United States Court of Appeals for the Ninth Circuit —November 6, 2013. Photo by Ken Lund / Flickr.

Meta’s settlement of the social media addiction case brought by 47 states has attracted substantial criticism for its concessions on speech restrictions and age assurance. But one aspect of the case likely will set a dangerous precedent involving Section 230 of the Communications Decency Act.

Before Meta settled with the state attorneys general, it asked the district court judge in California to dismiss the lawsuits under Section 230, which immunizes online service providers such as Meta from most claims arising from user content. Although the judge concluded that Section 230 applied to some of the claims, she allowed others to proceed.

Typically, a defendant can’t immediately appeal a denial of a motion to dismiss, as appeals generally require final judgments. But there are some narrow exceptions to the final judgment rule that allow such “interlocutory appeals.” Meta attempted to appeal to the 9th U.S. Circuit Court of Appeals under one of those exceptions, the collateral order doctrine. But to do so, the court would need to agree with Meta that Section 230 provides immunity from suit. If, as the plaintiffs argued, Section 230 merely provides immunity from liability, Meta could only appeal the Section 230 ruling when it received a final judgment (such as a trial verdict).

While this seems like an in-the-weeds civil procedure peculiarity, it matters significantly when it comes to Section 230. One of Section 230’s primary benefits is that it prevents platforms from going through costly discovery and trial. While a huge company such as Meta likely could handle such expenses, the litigation costs could be enormous for a smaller platform.

And the 9th Circuit had never ruled on whether Section 230 losses qualified for early appeals. In its Aug. 10 opinion, the court concluded that they do not, because Section 230 only provides a defense to liability. As Sophia Cope of the Electronic Frontier Foundation wrote last month, “the ruling should raise concerns for anyone who cares about an open and free internet.”

But as Cope correctly notes, the text of Section 230 suggests that it provides immunity from suit, in which case the early appeal would be available. Section 230 states “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” If Section 230 only protected defendants from liability, this sentence would start with “no liability may be imposed.” But Congress chose to also state that “[n]o cause of action may be brought,” suggesting full immunity from suit. The 9th Circuit acknowledged this, but summarily wrote it off as a drafting quirk: “Whatever Congress’s reason for including both phrases, sometimes the better overall reading of the statute contains some redundancy,” the court wrote.

The 9th Circuit acknowledged that the entire sentence was not in the original version of Section 230 and was added during conference committee. One might see that important change as an intentional move to create immunity from suit. But the court did not see it that way. “It would be surprising if these ‘minor modifications’ included the addition of immunity from suit,” the court wrote.

Surprise! That is exactly what the revisions to Section 230 did. As it was originally introduced, Section 230 also had a provision that barred the Federal Communications Commission from regulating internet content. The conference committee eliminated that section and added the immunity sentence. When Section 230 was initially introduced, its backers focused largely on the bill’s anti-regulatory nature. For instance, when Section 230 co-author, then-Rep. Chris Cox, introduced the bill on the House floor in August 1995, he said that it “will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the internet, that we do not wish to have a Federal Computer Commission with an army of bureaucrats regulating the internet.” But by the time it received a final vote in Congress as part of the Telecommunications Act of 1996, Section 230 was more focused on immunity.

Indeed, the 9th Circuit’s conclusion that Section 230 only provides immunity from liability contradicts some of its earlier rulings. For instance, in Barnes v. Yahoo, a 2009 opinion that is one of the most cited 9th Circuit opinions on Section 230, the court wrote that the statute “protects certain internet-based actors from certain kinds of lawsuits.” And one of its earliest Section 230 opinions, Carafano v. Metrosplash, concluded that “Congress intended that service providers such as Matchmaker be afforded immunity from suit.” In its ruling against Meta, the court acknowledged that it used the word “‘immunity’ somewhat loosely in our section 230 jurisprudence” but wrote those cases off as nonbinding because they were not in the context of an interlocutory appeal.

Because of the weaknesses in the three-judge panel’s reasoning, Meta would have stood a reasonable chance of convincing the 9th Circuit to rehear the case en banc before a panel of 11 judges. But now that the parties have negotiated a settlement, such review is highly unlikely, meaning that this opinion will remain the law of the land in the western United States, where many small and large tech platforms are based. And that could translate into fewer options for people across the country to express themselves and receive information.

---

Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the co-author (with Jacob Mchangama) of the new book The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom (Johns Hopkins University Press, 2026).