Grindr Defeats FOSTA Claim–Doe v. Grindr

This case (like many I’m covering nowadays) involves heartbreaking facts, but from a legal standpoint, it was never meritorious.

Doe created a Grindr account at age 15 (Doe claimed he was 18). He matched with 4 men. “Doe met each man in person and was sexually assaulted and raped.” Three of the men are in jail; one is on the lam. Even though the legal system punished the wrongdoers, the lawsuits continue. Doe sued Grindr for strict products liability, negligence, and FOSTA. The court holds that Section 230 applies to the claims.

ICS Provider. The plaintiff didn’t challenge this factor.

Publisher/Speaker Claims. Doe claimed “he seeks to hold Grindr liable for the design, development, and sale of a defective product—the App—that matches children with adults for in-person sexual encounters and facilitates the exchange of sexually explicit material.” The court responds that “Grindr’s match function relies on and publishes a user’s profile and geolocation data, which is third-party content generated by the user.” Cites to Dyroff and Herrick v. Grindr. The court explains:

Grindr received the user content from Doe and the adult men and published it via the match feature’s notification. If Grindr had not published that user-provided content, Doe and the adult men would never have met and the sexual assaults never occurred. [cite to Doe v. MySpace–the same opinion the 5th Circuit nearly overturned]

From a legal standpoint, this isn’t complicated. Grindr allows users to talk with each other. That’s really all it does. The specific details about how Grindr facilitates those conversations don’t really matter. Section 230 applies when a plaintiff tries to impose liability for users talking with each other. The Doe v. MySpace opinion made this clear fifteen years ago, but plaintiffs keep trying to overturn this long-standing legal principle.

The court rejects Doe’s attempted Lemmon v. Snap workaround because Doe’s claim is based on third-party content:

the facts here differ from Lemmon and warrant a different result. The harm Doe alleges does not flow solely from the product software. Rather, the harm animating Doe’s claims is directly related to the geolocation and content provided by users, which facilitates the match, direct messages, in-person meetings, and ultimately here, Doe’s assaults. Unlike Lemmon, where the harm from reckless fast driving could occur independently of any publishing or editing, here, Doe’s assaults could not have occurred without Grindr’s publication via the match of user geolocation and profile data.

Ultimately, the alleged “defect” here is only relevant to Doe’s injury to the extent it made it easier or more difficult for other users to communicate with Doe, and thus Doe seeks to hold Grindr liable for its failure to regulate third party content. Furthermore, the Ninth Circuit considers a defendant website’s functions, operations, and algorithms—like Grindr’s match feature here—to be editorial choices, made to facilitate the communication of others

It’s impossible not to feel sympathy for the victim, but I’m struggling with the decision to deploy an obviously flawed legal strategy. Plaintiffs across the country are hoping to convert Lemmon v. Snap into a broad-based Section 230 workaround for negligence claims based on third-party content. That requires lawyers to make a cynical misreading of the Lemmon case. If the ultimate claim is based on publishing third-party content, Section 230 applies. The Lemmon case reinforces, not undermines, this position.

Third-Party Content. “Doe argues that Grindr materially contributed to Doe’s assaults by matching geographically proximate children with adults on the Grindr App.” The court says this argument isn’t relevant to this factor. Plus, “Had third parties, including Doe, refrained from sharing geolocation data and communications, the claims that Grindr failed to warn users of the risk of sexual exploitation or negligently misrepresented the App’s safety would not be cognizable.”

FOSTA. Citing Doe v. Reddit and Doe v. Twitter, the FOSTA workaround to Section 230 fails:

  • “Doe expressly alleges he informed Grindr he was over eighteen, so his direct perpetrator claim fails on this record because he cannot now assert that Grindr knew or should have known that Doe was a minor.”
  • Grindr didn’t violate 1591 based on these allegations: “Grindr may have had constructive knowledge of lawsuits or media accounts concerning sexual predators using the Grindr App in their predations, or that it derived revenue ‘from all users through the sale of ads.'”

The court distinguishes the AM v. Omegle rulings from Oregon:

To the extent the Court’s conclusions herein differ from those in, the Court must respectfully disagree. Regarding the product liability claims, Section 230 immunity is “quite robust.” The Court cannot escape that the claims here turn on Grindr’s treatment of third-party provided content, bringing them within the robust immunity provided by Section 230, and outside the excepted product liability claims recognized in Lemmon. Regarding the sex trafficking claims, the Court reads the statute and the Ninth Circuit’s decisions in Reddit and Twitter to require something more than the attenuated allegations of TVPRA liability pleaded here.

It’s heartbreaking to contemplate Doe’s experiences, and yet it’s also sad to see Doe try to stretch FOSTA to apply to situations it was never intended to reach.

This ruling is consistent with a similar (uncited) Doe v. Grindr decision from a few months ago. I assume this case is headed to the Ninth Circuit.

Case Citation: Doe v. Grindr, Inc., 2:23-cv-02093-ODW (C.D. Cal. Dec. 28, 2023)

Prior Blog Posts About Grindr

More SESTA/FOSTA-Related Posts

* Twitter Defeats FOSTA Case Over CSAM–Doe v. Twitter
DC Circuit Upholds FOSTA’s Constitutionality (By Narrowing It)–Woodhull v. U.S.
Section 230 Immunizes Snap, Even if It’s “Inherently Dangerous”–L.W. v. Snap
The Ninth Circuit’s FOSTA Jurisprudence Is Getting Clearer (and More Defense-Favorable)
Defendants Get Important FOSTA Win in 9th Circuit–Doe v. Reddit
More Evidence that FOSTA Benefited No One
Omegle Denied Section 230 Dismissal–AM v. Omegle
Section 230 Helps Craigslist Defeat Sex Trafficking Case–LH v. Marriott
Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–GG v. Salesforce
Constitutional Challenge to FOSTA Fails–Woodhull v. US
Catching Up on a FOSTA Case–ML v. Craigslist
Facebook Loses Jurisdictional Ruling in Texas Sex Trafficking Lawsuit–Facebook v. Doe
Justice Thomas Really, REALLY Wants Section 230 Repealed (Even If He Has to Do It Himself)
Section 230 Immunizes TikTok for User-Posted Videos–Day v. TikTok
So Many Unanswered Empirical Questions About FOSTA
Another Problematic FOSTA Ruling–Doe v. Pornhub
Catching Up on Recent FOSTA Developments (None of Them Good)
Section 230 Preempts Claims Against Omegle–M.H. v. Omegle
To No One’s Surprise, FOSTA Is Confounding Judges–J.B. v. G6
FOSTA Claim Can Proceed Against Twitter–Doe v. Twitter
FOSTA Survives Constitutional Challenge–US v. Martono
2H 2020 Quick Links, Part 4 (FOSTA)
Justice Thomas’ Anti-Section 230 Statement Doesn’t Support Reconsideration–JB v. Craigslist
Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist
Section 230 Preempts Another FOSTA Claim–Doe v. Kik
Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist
Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court
Craigslist Denied Section 230 Immunity for Classified Ads from 2008–ML v. Craigslist
2H 2019 and Q1 2020 Quick Links, Part 3 (FOSTA/Backpage)
New Paper Explains How FOSTA Devastated Male Sex Workers
FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US
New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)
Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–Doe v. Salesforce
Latest Linkwrap on FOSTA’s Aftermath
Section 230 Doesn’t End Lawsuit Claiming Facebook Facilitated Sex Trafficking–Doe v. Facebook
New Essay: The Complicated Story of FOSTA and Section 230
Who Benefited from FOSTA? (Spoiler: Probably No One)
FOSTA’s Political Curse
FOSTA Doesn’t Help Pro Se Litigant’s Defamation Claim Against Facebook
Constitutional Challenge to FOSTA Dismissed for Lack of Standing (Guest Blog Post)
An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)
Indianapolis Police Have Been “Blinded Lately Because They Shut Backpage Down”
Constitutional Challenge Against FOSTA Filed–Woodhull v. US (Guest Blog Post)
Catching Up on FOSTA Since Its Enactment (A Linkwrap)
More Aftermath from the ‘Worst of Both Worlds FOSTA’
‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
What’s New With SESTA/FOSTA (January 17, 2018 edition)
New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
How SESTA Undermines Section 230’s Good Samaritan Provisions
Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
Another SESTA Linkwrap (Week of October 30)
Recent SESTA Developments (A Linkwrap)
Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
My Senate Testimony on SESTA + SESTA Hearing Linkwrap
Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity