9th Circuit rejects Meta, TikTok bid for immediate appeal of Section 230 rulings

Section 230 of the Communications Decency Act doesn't give Meta immunity from a lawsuit brought by several state attorneys general over the company's alleged role in social media addiction, the 9th U.S. Circuit Court of Appeals ruled Monday, as the social media giant prepares for trial in Oakland.

A panel consisting of Circuit Judges Jacqueline H. Nguyen and Mark J. Bennett and U.S. District Judge Kiyo A. Matsumoto of the Eastern District of New York affirmed Chief U.S. District Judge Yvonne Gonzalez Rogers' decision to let the case go to trial, finding that Section 230 is a valid defense but does not immunize Meta from suit altogether.

Gonzalez Rogers ruled against Meta's motion to dismiss, finding that the 1996 law, which protects internet platforms from liability based on third-party content, narrowed the plaintiffs' claims but did not bar them entirely.

"Although section 230 does not expressly provide for immunity from suit, Meta argues that such immunity should be implied," Nguyen wrote on behalf of the panel. "We disagree."

The case is People of the State of California, et al. v. Meta Platforms, Inc., et al., 24-7032 (9th Cir., filed Oct. 24, 2023).

Meta, represented at a January hearing by Davis Polk & Wardwell LLP, argued that Section 230 provides immunity not just from liability but from suit, pointing to a clause that says "no cause of action may be brought and no liability may be imposed" if inconsistent with the 1996 law.

Meta argued that the prohibition against bringing a cause of action would be superfluous if the provision merely barred liability, and therefore must also prohibit the filing of a lawsuit.

But the panel found that a better explanation for the language is that Congress took a "belt and suspenders" approach when drafting the bill, pointing out that original versions did not include the entire clause in question -- the second sentence of Section 230(e)(3).

"In reconciling a competing bill, the Senate adopted the House proposal 'with minor modifications,' including what is now the second sentence. It would be surprising if these 'minor modifications' included the addition of immunity from suit," Nguyen wrote.

Meta also pointed to language elsewhere in the law, including a statement that its purpose is to promote a vibrant internet with safeguards against objectionable content and a provision stating that internet providers should not be treated as publishers of third-party content. Those provisions, Meta argued, support immunity from suit.

But the panel rejected the argument.

"When Congress wants to create immunity from suit, it knows how to say so unequivocally," Nguyen wrote.

Because Meta isn't immune from suit, the panel concluded that the issue could not be heard on an interlocutory appeal before final judgment.

The first bellwether trial involving claims brought by nearly 30 states against Meta is scheduled to begin this week in Oakland, with California, Colorado, Kentucky and New Jersey presenting their claims against the company. The states allege Meta misrepresented the addictive nature of its platforms and violated consumer protection laws, as well as the Children's Online Privacy Protection Act. Jury selection is scheduled for Wednesday, Aug. 12.

TikTok joined Meta's appeal. Although TikTok is not a defendant in the states' case, it is a co-defendant in many of the lawsuits brought by hundreds of school districts nationwide as part of the same multidistrict litigation.