Roundup of Recent Section 230 Developments

Sometimes the Section 230 developments come faster than I can blog ’em, so they pile up in my queue. This post cleans the queue.

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A.M. v., LLC, 2023 WL 1470269 (D. Ore. Feb. 2, 2023). A rough FOSTA ruling despite the Reddit precedent. A sampling:

Defendant could make changes that would minimize predators’ access to children. For example, Omegle could require age verification and forbid minors from use, separate minors and adults, or more thoroughly track and monitor its users. It does not. Given the very structure of the platform, and Omegle’s business model, I find that Plaintiff has sufficiently alleged that Omegle knew or recklessly disregarded the fact that it was receiving compensation from advertisers on account of the sex acts taking place on its website, some of which involved minors…

I find that Plaintiff has alleged that Omegle did knowingly facilitate sexual encounters between minors and adults, and that it benefited in that venture through receiving advertising revenue. Plaintiff successfully contends that Defendant did more than “turn a blind eye to the source of their revenue.” Defendant’s entire business model, according to Plaintiff, is based on this source of revenue. These allegations meet the “far more active form of participation” required to survive this stage of the proceedings

[Just a reminder that the court’s casual suggestion that Omegle could adopt age verification technology might itself be an unconstitutional requirement. The age verification battle will ultimately reach the Supreme Court.]

The court does find 230 applies to the negligent matching claim: “the service that Defendant provides is twofold: both matching and publishing. Seeking to hold an interactive computer service provider liable for publishing information provided by a user of the product falls directly into § 230’s ambit.”


FTC v. Roomster Corp., 2023 WL 1438718 (SDNY Feb. 1, 2023). This case involves a roommate matching service that allegedly accepted unverified listings but advertised that listings were verified, plus it allegedly purchased fake reviews to increase consumer demand. This does not go well.

Plaintiffs’ complaint does not attempt to hold Defendants liable for the fact that someone else put fake listings on their website. They charge that Defendants themselves advertise on their platform that all listings are “verified and authentic,” when they are not, and arranged for third parties to create and post fake reviews about their website, Defendants are alleged to have been involved in hiring the creators of the reviews, paying them to create the reviews (Martinez and others), and specifically instructing how and when the reviews should be posted. Similarly, insofar as Plaintiffs’ deception claims capture fake listings on other websites that direct consumers to the Roomster platform, such as Craigslist, Defendants are responsible as the creators that unlawful content. That is all actionable conduct not barred by Section 230.


Missouri v. Biden,  2023 WL 2578260 (W.D. La. March 20, 2023). A magalicious opinion that addresses the same basic topics as the more recent Kennedy v. Warren 9th Circuit ruling, but this opinion does so in a dramatically inferior fashion that credulously accepts the plaintiffs’ dubious Fox News-inspired talking points. The opinion has no reason to tangle with Section 230, but it does so anyway. For example:

The Defendants’ alleged use of Section 230’s immunity—and its obvious financial incentives for social-media companies—as a metaphorical carrot-and-stick combined with the alleged back-room meetings, hands-on approach to online censorship, and other factors discussed above transforms Defendants’ actions into state action. As Defendants note, Section 230 was designed to “reflect a deliberate absence of government involvement in regulating online speech,” but has instead, according to Plaintiffs’ allegations, become a tool for coercion used to encourage significant joint action between federal agencies and social media companies. Plaintiffs’ injuries could be redressed by enjoining Defendants from engaging in the above-discussed “other factors” that have twisted Section 230 into a catalyst for government-sponsored censorship.


Wilson v., LLC, 2023 WL 1112265 (S.D. Ohio Jan. 31, 2023). Another yearbook case with a rough denial of the motion to dismiss:

because the alleged unlawful content consists of Ancestry’s advertisements using Wilson’s persona to promote paid subscriptions, and Ancestry is responsible for the development of these advertisements, Ancestry materially contributed to the alleged unlawful content and therefore cannot use section 230 to shield itself from liability

See also Fry v. Operations, Case No. 3:22-CV-140 JD (N.D. Ind. March 24, 2023) (“Mr. Fry’s name and likeness have commercial value. Why else would Ancestry bother to include it in its advertisements?”). Tautology much?


McDow v. Reinbold, 2022 Alas. Trial Order LEXIS 13 (Alaska Superior Ct. Dec. 9, 2022). The complaint.

This is one of the many lawsuits alleging that politicians banned constituents on social media. That issue will be going back to the Supreme Court this year. Meanwhile, this opinion unexpectedly strayed into Section 230. The legislator in question (former Sen. Lora Reinbold–now retired, but still busy in court) invoked Section 230(c)(2)(A) to justify blocking her constituents. The court’s response is…what???

the CDA does not apply to government officials acting under the color of law…It was not Congress’s intent to allow government officials to interfere with people’s First Amendment rights.

(And, in fact, Congress could not statutorily override constituents’ Constitutional protections even if it tried).


Jaime-Crisostomo v. Hernandez, 2022 Ariz. Super. LEXIS 644 (Az. Superior Ct. Dec. 22, 2022):

First, Courts across the country acknowledge that Snap is an interactive computer service provider….The CDA forbids lawsuits that hold internet platforms responsible for harm based on user content.

Second, the content at issue was provided by a Snapchat user.

Third, Plaintiffs claim that they are challenging the design of the product as opposed to trying to hold Snap liable for the publishing of the content. Under Plaintiff’s theory, Snap designed the applications to encourage people to engage in outrageous behavior. While Plaintiff’s position seems to challenge the product design, the claim actually depends a user publishing content. For example, Plaintiff asserts that the shooter would not have committed the crimes had Snapchat not allowed him to post videos or gain notoriety…

The Court finds Lemmon to be distinguishable because in this case, it is the posting of the conduct or information that leads to notoriety and respect not the conduct itself that is at issue. While styled as a negligent design claim, the Plaintiffs essentially posit that Snap did not properly monitor and curb third-party content on its platform or that it encouraged posting outrageous behavior on its platform.


Aram Sinnreich et al, Performative Media Policy: Section 230’s Evolution From Regulatory Statute to Loyalty Oath. The abstract:

This study analyzes 84 pieces of legislation between 1996 and January 20, 2021 proposing to modify “Section 230,” the clause in the Communications Act that protects Internet platforms from third-party liability for its users’ actions. Patterns in that legislation align with media coverage of Section 230. The study shows that in recent years, such legislation has shifted from bipartisan, policy-focused law to Republican partisan bills intended as a gesture of support for President Trump, who had attacked the clause believing that it permitted platforms to moderate against his interests. Thus, legislation was often designed not only as a “messaging bill,” but as a message to a particular person, whom legislators believed held the keys to their own electoral futures.

Now you can see why I rarely blog bills to reform Section 230 any more. So many of them are pure political stunts, not serious attempts to grapple with the inevitable tradeoffs that are part of any speech policy. It saddens me that the stunts are effective, i.e., constituents cheer them and the media treats them as legitimate reform efforts, when both communities should be tearing into the sponsoring politicians for using taxpayer-funded resources to disseminate what is essentially propaganda.


The July 2022 California Bar Exam tested on Section 230!!! It was the Performance Test question styled “NIESI v. GOSLING and HARDY.” The 230 case included in the file was an excerpt of the en banc ruling, which is just cruel to test-takers because that opinion baffles even 230 experts.

Thus, I don’t blame the test-taker who wrote one of the example answers for saying “Gosling’s immunity turns on whether the comments feature to the blog is categorized as an ‘information content provider’ or an ‘interactive computer service provider.'” This is technically correct, but it’s garbled due to the messiness of the precedent.

(For what it’s worth, I think the second example answer is stronger than the first, even though I think it reaches a more dubious conclusion. Indeed, the second answer is quite impressive given the limited time given to answer the question).