With Opinions Like This, Congress Doesn’t Need to Repeal Section 230–Massachusetts v. Meta
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The court summarizes the state’s claims:
The Commonwealth alleges that Meta Platforms, Inc., and Instagram, LLC (collectively, Meta), engaged in unfair business practices by designing the Instagram platform to induce compulsive use by children, engaged in deceptive business practices by deliberately misleading the public about the safety of the platform, and created a public nuisance by engaging in these unfair and deceptive practices.
Meta moved to dismiss on Section 230 and other grounds. The lower court denied the motion. Meta sought an interlocutory appeal, which the MA Supreme Court permitted, but only to review the Section 230 issue.
In this ruling, the MA Supreme Court unanimously agreed with the lower court that Section 230 didn’t immunize Meta when “the claims allege harm stemming from Meta’s own conduct either by designing a social media platform that capitalizes on the developmental vulnerabilities of children or by affirmatively misleading consumers about the safety of the Instagram platform.”
Section 230
Treated as Publisher
The court starts with its own “plain language” review of what it means to be treated as a publisher. When courts decide to review a 1996 statute from scratch in 2026, after over a thousand Section 230 cases have been decided, that’s usually an indicator that they are engaging in results-oriented decision-making, they don’t like the precedent, and they need another way to reach a different result.
Worse, the court extensively analyzes the word “publisher” but doesn’t say a word about the companion “speaker” term that appears two words later in the statute. This is another indicator of results-oriented decision-making. No matter what the court says “publisher” means, if the court disregards one of the other 26 words that has direct relevance to its meaning, the court is failing its #1 job of reading the damn statute. This omission is extremely embarrassing for the court, and it thoroughly undermines the credibility of the court’s recitation of precedent.
(I would say that the botched statutory reading would be the kind of thing that should be fixed on appeal, but the US Supreme Court’s specialty is selectively reading statutes and precedent to support results-oriented decision-making, so I guess other courts are emboldened to do that too…?)
The court tries to sum up its “plain language” review. Citing the awful Henderson 4th Circuit (which the Fourth Circuit itself has implicitly repudiated), the court says:
These courts have rejected the argument that § 230(c)(1) provides immunity from liability “anytime there is a ‘but-for’ causal relationship between the act of publication and liability,” as it “bears little relation to publisher liability at common law.” Engaging in traditional publishing activity “alone is not enough.”…
(Note: along the way, the court includes quotes of the mockable “get-out-of-jail-free” and “lawless no-mans-land” characterizations of 230, despite my prior debunking of both phrases. Another way the court undermined its own credibility).
Because “the plain meaning of the statute lends itself to competing constructions,” the court then turns to the legislative history for more insight into the meaning of the word “publisher.” This leads to the one-millionth retelling of the Cubby/Stratton Oakmont storyline, with no new payoffs.
Instead, citing Henderson again, the court restates the statutory language in garbled fashion: “Congress intended to immunize interactive computer service providers against claims that would hold them liable as intermediaries for injuries caused by information provided by third-party users of their platforms.”
Relying on that garbled restatement, the court says:
we decline Meta’s invitation to read § 230(c)(1) immunity so broadly as to encompass all claims that implicate publishing activities regardless of whether the claims seek to hold the service provider liable for the content of the information published….
a claim treats a provider as a publisher of information where it meets both the dissemination and content elements.
I’d need to see how Meta argued this, but it feels like the court is rejecting a strawman. Meta publishes third-party content–everyone agrees on that. The service features challenged by the state AG relate to the manner in which Meta presents that third-party content to Meta’s audience. To me, a publisher’s choices of what third-party content to publish and how to publish that third-party content are integrated decisions. In other words, the content selection and presentation decisions are part of the same publication decision. As an analogy, consider a dead-trees newspaper’s decision to publish a story: it is equally part of the newspaper’s editorial prerogative and publication decisions to decide to publish the story at all and to decide if the story should appear on the A1 front page or some interior page; what size typeface to use for the story headline; whether the story runs all on the same page or continues on a later page; etc. As applied to Meta, the decision to vary the delivery timing of new third-party content items (as one example) is just as much of Meta’s publication decision-making process about publishing the third-party content as whether the item will be published at all.
In any case, by saying that 230 only applies to claims that derive from the substance of the third-party content item, the court can disregard a LOT of precedent that applied Section 230 to design defects. The court says the only oppositional precedent is some language in the Social Media Addiction federal decision, which the court denigrates by saying the judge in that case “did not appear to consider the common-law origins of publisher liability or the statute’s legislative history. We are not persuaded by its reasoning.” [Yes, it’s jarring to see Meta cite the CA social media addiction case as support for its position given that how poorly the California cases have been going for Meta.]
Liability Based on Third-Party Content
Claim for unfair business practices. Having said that Section 230 distinguishes the decisions of what content to publish (230-protected) and how to present it (not protected by 230), the court is positioned to uphold all of the claims.
The court says: “The challenged design features (e.g., infinite scroll, autoplay, IVR, and ephemeral content) concern how, whether, and for how long information is published, but the published information itself is not the source of the harm alleged.”
Meta responded that “in the absence of third-party content, the design features could not facilitate addiction in young users.” (My framing: if social media delivers third-party content, what exactly are users “addicted” to?). The court replies:
But the fact that the features require some content to function is not controlling; instead…to satisfy the content element, we look to whether the claim seeks to hold Meta liable for harm stemming from third-party information that it published. Here, the unfair business practices claim does not; the Commonwealth alleges that the features themselves prolong users’ time on the platform, not that any information contained in third-party posts does so. In this sense, the claim is indifferent as to the content published…
the fact that a claim concerns publishing activities, including the use of algorithms in connection with publishing activities, is not enough to bring the claim within the immunity provided by § 230(c)(1)
In a footnote, the court adds: “with respect to the notifications feature, Meta appears to be the information content provider.” But…what content is included in the notifications, and where does it come from?
In a slight piece of good news, the court rejects the state’s Lemmon v. Snap analogy because Lemmon’s “claims did not concern the provider’s publishing activity at all. [Eric’s note: the Lemmon plaintiffs expressly disclaimed all liability based on the content produced by the filter.] By contrast, here, the challenged features are publishing tools that control how Meta publishes content to users of its platform.” I wish more courts would similarly reject the plaintiffs’ many miscitations to Lemmon.
Claim for deceptive business practices. The claim “is based on Meta’s own speech — its allegedly false statements that Instagram is safe and not addictive, and that Meta prioritizes young users’ well-being, despite internal reports and communications suggesting awareness of the harmful effects of Instagram.” There are obvious puffery/opinion defenses that could apply here (see, e.g., the YOLO remand in Bride v. Snap, Inc., 2026 WL 855148 (C.D. Cal. March 16, 2026) that I will eventually blog) but are not at issue in the 230 discussion.
Also, some courts have applied Section 230 to false advertising claims when those claims are fundamentally based on how the service handles its content moderation decisions, such as claims about “safety.” The court doesn’t acknowledge that precedent and instead treats Section 230 as categorically inapplicable to false advertising claims.
Claim for defective age-gating. “the claim focuses on Meta’s own affirmative misstatements about the inaccessibility of its platform to underage users.” Another possible puffery issue.
Nuisance. I’ve previously complained before about courts’ complete undertheorizing of how and why public nuisance claims can apply to social media, and this court doesn’t do any better. In a footnote, here is the court’s entire discussion about Section 230’s application to the public nuisance claim: “Because we conclude that § 230(c)(1) does not bar counts I to III, we also conclude that it does not bar the Commonwealth’s public nuisance claim, which is predicated on the same allegedly unfair and deceptive practices in counts I to III.”
What Happens Next?
Meta could appeal this ruling to the US Supreme Court. That would be a risky move because the US Supreme Court could really go sideways on a decision like this. Also, I’m skeptical the US Supreme Court would grant cert.
Meta could choose to prioritize winning this case on remand on non-23o grounds. For example, the MA Supreme Court validated that Meta’s service features at issue are part of its content publication process. Perhaps that will revitalize Meta’s First Amendment defense?
Whether Meta chooses to appeal or double-down on remand, it’s likely that the CA federal and state court social media addiction cases will have important new developments before any material developments happen in this case. Those developments could swamp the effects of this lawsuit. For example, if Meta loses more bellwether trials in California, the outcome of this case may be comparatively inconsequential.
Quo Vadis Section 230?
This is not a good opinion for Section 230 on several dimensions.
First, as a state supreme court decision, it’s the final word for the Massachusetts state court system (unless the US Supreme Court intervenes). It provides a major beachhead for other courts to follow, both within Massachusetts and beyond.
Second, this court didn’t rely on the Lemmon “design defect” workaround. Instead, it said that the claim doesn’t relate to third-party content unless it’s based on the substance of the third-party content. This provides plaintiffs with another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting (even if they shouldn’t).
Third, as I explained, I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance. Here’s how a plaintiff’s argument could look: “I’m not suing about the third-party content, I’m suing about the design choices that elevated that third-party content over others.” These are literally the same thing in my mind. If this argument works, Section 230 is dead because plaintiffs will always embrace that workaround.
Case Citation: Commonwealth v. Meta Platforms, Inc., 2026 WL 969430 (Mass. Supreme Jud. Ct. April 10, 2026)