Ninth Circuit Says Section 230 Preempts “Defective Design” Claims–Doe v. Grindr

February 18, 2025 · by · in Content Regulation, Derivative Liability

I previously summarized this case:

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 district court dismissed the case. The Ninth Circuit affirms every point of the district court’s decision. The panel summarizes: “Because Doe’s state law claims necessarily implicate Grindr’s role as a publisher of third-party content, § 230 bars those claims. Doe fails to state a plausible TVPRA claim, so Doe cannot invoke a statutory exception to § 230 immunity.”

Section 230

The plaintiff tried the standard Section 230 workaround of trying to frame the case about Grindr’s design and configuration choices, rather than the third-party content exchanged on Grindr. The court tersely and emphatically rejects this workaround:

The theory underpinning Doe’s claims for defective design, defective manufacturing, and negligence faults Grindr for facilitating communication among users for illegal activity, including the exchange of child sexual abuse material. Doe claims that Grindr had a duty to suppress matches and communications between adults and children, so as to prevent the harmful sharing of messages between users that could lead to illegal activity. These claims necessarily implicate Grindr’s role as a publisher of third-party content, because discharging the alleged duty would require Grindr to monitor third-party content and prevent adult communications to minors…

as in Dyroff, Doe used “features and functions” of Grindr that were “meant to facilitate the communication and content of others,” and the features and functions were “content neutral” on their own. Therefore, as in Dyroff, § 230 bars the defective design, defective manufacturing, and negligence claims

The Lemmon workaround fails (the court says it’s “unpersuasive”) because “the challenged features of the App are not independent of Grindr’s role as a facilitator and publisher of third-party content.” I wish the court said more about exactly why; perhaps this is covered by the court’s earlier statement that “discharging the alleged duty would require Grindr to monitor third-party content and prevent adult communications to minors.”

The Internet Brands/failure-to-warn workaround fails because, in that case, “plaintiff’s failure-to-warn claim was not based on the defendant’s failure to remove any user content or on the defendant’s publishing or monitoring of third-party content….Here, by contrast, Doe does not allege that Grindr had independent knowledge of a conspiracy, and Grindr’s role as a publisher of third-party content does not give it a duty to warn users of “a general possibility of harm” resulting from the App.” BTW, I disagree with the court’s summation of the Internet Brands case; I feel the Ninth Circuit got that one wrong because that case was always about third-party content.

The “negligent misrepresentation” workaround, based on Grindr’s claim to provide a “safe and secure environment for its users,” also fails. The court says that Grindr’s claim is not a specific promise, is too general to be enforced (I guess it’s like puffery?), and is “a description of its moderation policy.”

FOSTA

The FOSTA claim was functionally foreclosed by the Ninth Circuit’s prior ruling in Doe v. Reddit, though perhaps the plaintiff hoped a new panel would carve some holes in that precedent. It didn’t:

Doe must plausibly allege that Grindr “knowingly” sex trafficked a person by a list of specified means. But the FAC merely shows that Grindr provided a platform that facilitated sharing of messages between users. The FAC’s allegation that Grindr “knowingly introduces children to adults for in-person sexual encounters,” is not supported by any plausible factual allegations. To the contrary, the FAC asserts that Grindr matches users who have represented to the App that they are over eighteen years old. The allegation that Grindr “recruits both children and adults to use” the App does not plausibly allege that Grindr’s own conduct perpetrated sex trafficking; rather, it alleges general advertising of the App on social media. At most, the FAC shows only that Grindr “turned a blind eye” to facilitating matches between minors and adults, which is insufficient to show even beneficiary liability….

the FAC does not plausibly allege that Grindr benefitted from the alleged sex trafficking beyond generally receiving advertising revenues. An interactive computer services provider is not liable as a beneficiary if it merely turns a blind eye to the source of its revenue; there must be “actual knowledge and a causal relationship between affirmative conduct furthering the sex-trafficking venture and receipt of a benefit.” Doe’s references to Grindr’s constructive knowledge of child sexual abuse on its platform do not plausibly allege Grindr’s active participation in a sex trafficking venture. The FAC does not causally connect Grindr’s advertising revenues with any affirmative conduct by Grindr that furthered the sex-trafficking venture alleged in this case. At most, it alleges that Grindr turned a blind eye to sex trafficking on the App and generally benefitted from sex traffickers’ use of the App.

The panel notes its concurrence with the MH v. Omegle ruling from the 11th Circuit.

Implications

This is an important ruling because it preserves Section 230’s status quo. That shouldn’t be taken for granted given how many Ninth Circuit rulings in 2024 alone poked new holes in Section 230. This case didn’t poke any new holes, and indeed it rejected the plaintiff’s repeated attempts to fit into or expand the existing Section 230 exceptions. Plaintiffs routinely overread the 230 exceptions (especially the Lemmon case) as guaranteed workarounds. This panel reiterated that the 230 exceptions have limits.

I wonder about this ruling’s impact on other negligent design cases, most prominently the Social Media Addiction cases. In those cases, the district court judge has drawn its distinctions between claims based on third-party content and claims that don’t depend on the content per se. Will a Ninth Circuit panel agree?

Plaintiffs have been trying to poke holes in the Doe v. Reddit interpretation of FOSTA, and this panel rejected that attempt and reinforced the narrowness of the FOSTA exception to Section 230.

Slightly more novel is the court’s handling of the negligent misrepresentation claim about site “safety.” For at least 2 decades, courts have struggled with statements like this. This panel treats it as an easy question. In particular, the panel’s characterization that Grindr’s claim described its moderation policy is defense-favorable. My position is the site text at issue in the YOLO case (“a notification to new users promising that they would be ‘banned for any inappropriate usage,’ and another promising to unmask the identity of any user who ‘sen[t] harassing messages’ to others”) similarly just described YOLO’s moderation policies, but this panel characterized that language as specific promises that weren’t covered by Section 230. I’m not sure how reconcilable those results really are; at best, the panel is making some fine-grained factual distinctions.

I assume the plaintiff in this case will seek en banc rehearing and, failing that, Supreme Court review. Justice Thomas is still clamoring for a case he can use to eviscerate Section 230.

Case Citation: Doe v. Grindr, Inc., 2025 WL 517817 (9th Cir. Feb. 18, 2025)

Prior Blog Posts About Grindr