Section 230 and the First Amendment Curtail An Online Videogame Addiction Lawsuit–Angelilli v. Activision
The court summarizes the plaintiffs’ allegations:
D.G. began playing video games when he was six years old and at some point became addicted. Plaintiffs further allege that D.G.’s gaming has resulted in serious harm, including emotional distress, lost friends, and problems in school. When his mother tries to limit his video gaming, Plaintiffs claim that D.G. experiences withdrawal symptoms such as rage and physical outbursts that leave his mother fearful and distressed. Seeking redress, Plaintiffs sued Defendants on the theory that their design decisions and failure to disclose the dangers of their products were the cause of D.G.’s addiction and Plaintiffs’ injuries.
The court dismisses Roblox, Google, and Apple from the case.
Roblox’s Dismissal
Section 230
ICS Provider. “Plaintiffs have alleged that Roblox hosts sixty-six million daily users on various web-connected devices, including gaming consoles, computers, and mobile devices. The Court has no trouble concluding that Roblox Corp. is a provider of an interactive computer service and Plaintiffs do not dispute this proposition.”
(The court doesn’t address the publisher/speaker claims prong, but summarily concludes that some claims are not covered by Section 230 for that reason).
Third-Party Content.
Plaintiffs allege that Roblox’s “addictive properties” are the “constant variety, social aspects, and numerous characters, skins, and other content available for purchase.” Some of this content is plainly alleged to be third-party content. Most prominently, Plaintiffs describe the variety of games Roblox users create as part of what “addicts users quickly.” To the extent Plaintiffs bring claims premised on the addictiveness of these user-generated games, Section 230 shields Roblox Corp. from liability. This is true even though Roblox provides users with tools to create these games, as a service provider does not become liable as a content creator simply because it “provides neutral tools that a user exploits” to tortious ends
(My evergreen objection to the oxymoronic phrase “neutral tools”).
In a footnote, the court adds: “Plaintiffs argue that they seek to hold Roblox Corp. liable only for their own content, and not the dissemination of any third-party protected expression, but the Court finds this strange given Plaintiffs have alleged that part of what makes Roblox addictive are user-created games.”
The court continues:
Plaintiffs’ concern seems to be that because players in Roblox are able to interact with each other, Roblox Corp. facilitates the rush and anxieties of peer pressure and socialization. While not yet directly addressed by the Seventh Circuit, other Circuits have concluded that Section 230 immunizes social media platforms from claims premised on the socializing effects and impacts of speech by the platform’s users. [Cites to Bride v. YOLO, MP v. Meta] The Court finds the Section 230 analysis in these decisions persuasive and concludes that Section 230 bars Plaintiffs from predicating their addiction-related claims on Roblox’s social aspects.
The court continues:
Plaintiffs also allege that Roblox players can spend money to modify their in-game avatars and that Roblox Corp. offers “numerous characters, skins, and other content available for purchase.” There is no allegation that these skins and other cosmetic materials are created by anyone other than Roblox Corp., and the reasonable inference is that they are Roblox Corp.’s own content.
For this reason, the court declines to base any dismissal solely on Section 230. However, the court later says: “The Court has concluded that Section 230 shields Roblox Corp. from liability based on its publishing of third-party content, which includes the “variety” of user-created games and “social aspects” of Roblox.” The plaintiffs will get a chance to amend their case, but they have a narrowed path forward.
First Amendment
Because Section 230 wipes out a chunk of the case, “the Court need not determine whether the First Amendment independently bars Plaintiffs from seeking to hold Roblox Corp. liable for hosting third-party content. That leaves only Roblox Corp.’s own content, i.e., the characters, skins, and game creation tools.”
The court starts:
The First Amendment protects the dissemination of tools used for the preservation of information and ideas. Video games are recognized forms of protected expression, and so Plaintiffs may not hold Roblox Corp. liable for offering game creation tools
Correct, but what’s the difference between offering “game creation tools” and all UGC authoring tools? I would love for the legal principle to be so simple: of course the First Amendment protects all authoring tools. However, that’s not how other courts have been treating it.
As for the other components: “it sounds like Plaintiffs are attempting to premise liability on the fact that Roblox allows users to create avatars with different appearances and purchase different items for their characters. If that understanding is correct, the Court concludes that this content is protected by the First Amendment.”
The c0urt rejects the plaintiffs’ “but it’s addictive speech” argument:
Plaintiffs label Roblox “addictive,” but this just seems like another way of saying that Roblox’s interactive features make it engaging and effective at drawing players into its world, and First Amendment protections do not disappear simply because expression is impactful. To the contrary, that is when First Amendment protection should be at its zenith.
Whoa, this is such a powerful response. This seemingly applies to all arguments over “addictive speech,” not just the Roblox features at issue here. I hope other judges will consider this opinion when confronted with similar plaintiffs’ arguments.
The plaintiffs responded with the standard argument that they sought to hold Roblox accountable for its conduct, not its content. The court rejects this as well:
the primary tortious conduct alleged by Plaintiffs is the way the Roblox world and its characters are designed, and the First Amendment is not so feeble that it can be circumvented by framing acts of creation as “conduct” rather than expression…
At its core, what Plaintiffs complain of is the words and images that appeared on D.G.’s various gaming devices, and the effect that Plaintiffs believe those words and images had on D.G.’s brain and behavior.
In a footnote, the court adds skeptically: “Despite Plaintiffs’ repeated argument that they are not challenging Defendants’ content, the Court notes that the complaint uses the word “content” 109 times.” 🧮
The court also rejects the plaintiffs’ argument that they just want Roblox to change its conduct without changing any content:
This is about as persuasive as saying the First Amendment would not be implicated by a mandate that authors not end chapters on cliffhangers because moving a chapter heading does not affect a book’s content. The reason video games allegedly injured Plaintiffs is because they were so engaging D.G. could not stop playing. If Plaintiffs’ allegations are accepted as true, to remove the engaging elements of the game would be to fundamentally alter a user’s playing experience.
You can guess how the “but the algorithms” argument went (for example, the plaintiffs said: “machines have no First Amendment protection”):
Thankfully, we do not yet live in a science-fiction dystopia in which computers, on their own initiative, command us to act at their behest. Therefore, the Court can save for another day the question of whether a computer that develops sentience is entitled to the protection of the First Amendment. In this case, Plaintiffs’ theory of liability rests on the many allegations in the complaint that Roblox was performing exactly how Roblox Corp. had designed it to perform. Given that the algorithms of which Plaintiffs complain were developed by humans and generated words and images its human creators intended, the First Amendment applies
Countless law review articles have been written on this topic, most of them trying to make it more complicated, but it really is this simple: the First Amendment applies when “the algorithms…were developed by humans and generated words and images its human creators intended.” 🤖💬
As a last-ditch argument, the plaintiffs argued that Roblox’s marketing claims (such as saying Roblox is “educational” and provides “a fun, supportive, and educational space”) and Robux are commercial speech. This doesn’t help the plaintiffs because “none of Plaintiffs’ injuries appear to stem from these statements.” Later, the court also says the “descriptions of a platform as “fun,” “supportive,” and “educational” are nonactionable puffery.” Finally, in a footnote the court adds: ” Plaintiffs’ complaint alleges that Roblox is harmfully addictive in large part because it is too fun and supportive. Plaintiffs’ real argument is not that these claims are false or misleading, but that in the aggregate the harm of the product outweighs its benefits”
The court summarizes:
Plaintiffs have offered no bases for holding Roblox Corp. liable for the “addictive” qualities of Roblox that are not foreclosed by either Section 230 of the CDA or the First Amendment. Accordingly, the Court dismisses the products liability claims (Counts I-VI), ordinary and gross negligence claims (Counts VIII-IX), and infliction of emotional distress claims (Counts X-XI)
The court treats the remaining claims as beyond Section 230 but the court doesn’t explain why. The other claims all fail for various reasons.
Google and Apple’s Dismissal
Despite the complaint’s prolixity, it doesn’t clearly spell out its grievances against Google and Apple:
At 210 pages and 922 paragraphs, the complaint can hardly be considered a “a short and plain statement of the claim” as Rule 8(a) requires. In this case, more does not equal better, as a second problem with the complaint is that despite its vast length, Plaintiffs’ defendant-specific claims are hard to decipher because Plaintiffs aggregate many of their factual allegations and claims against different types of products (games, consoles, virtual stores) and entities (developers and platform operators) in a way that makes it difficult to determine which defendant is alleged to have engaged in what conduct in a way that resulted in what harm to Plaintiffs….
When Plaintiffs discuss Google and Apple specifically, their allegations are vaporously thin. The most fundamental problem is that there is no allegation that either Google’s or Apple’s virtual store was used to access one of the four at-issue games. The complaint alleges that D.G. played unspecified video games on an Android phone and an iPhone and that one or more of Roblox, Call of Duty, and Grand Theft Auto can be purchased on Google or Apple app stores. But there are no allegations about: (1) which (if any) of the four games that allegedly harmed D.G. was accessed via phone; (2) whether it was the Google or Apple virtual store (or both) used to download that particular game; or (3) who specifically accessed the Google or Apple virtual store to do so…
Given this lack of specificity, Plaintiffs have not even come close to establishing the proximate cause required for each of the nineteen claims brought against Google and Apple.
In giving the plaintiffs leave to amend, the court cautions them to consider Section 230:
Section 230 shields defendants from legal claims where the beginning and end of a defendant’s alleged misconduct is making third-party content available for others to consume…
Plaintiffs’ main argument for why Section 230 does not apply is that Plaintiffs seek to hold Google and Apple accountable for their “own content” and “own conduct,” rather than material developed by third parties. The Court is not sure what to make of this assertion, as it seems contrary to Plaintiffs’ core allegation that Google and Apple are in this suit because they make addictive games available on their platforms.
The court concludes with some skepticism about the factual allegations (and a Rule 11 reminder):
Not many six-year-olds have a cellular phone. Even fewer have both an Android and an iPhone. It is possible that D.G. was that rare child who had two different models of cellular phone and then used both the Google and Apple app stores to download and play one or more of the four at-issue games, but it is counsel’s obligation to ensure this before proceeding with a theory of liability premised on D.G.’s use of both Google’s and Apple’s stores.
Implications
These opinions involve videogame addiction, but their reasoning seemingly applies verbatim to social media addiction claims–such as the “social aspects” that the court says are just third-party claims by another name. As a result, I expect that defendants in other online addiction cases will be highlighting this opinion in their defenses. To me, the court’s rulings on Section 230 and the First Amendment are so intuitive that I can’t believe anyone takes contrary positions, but indeed other courts (including the In re Social Media Addiction cases) remarkably have found some content addiction-based claims survive both 230 and the First Amendment. This case is right and those cases are wrong.
If I were the plaintiffs, I would file an amended complaint trying to address the judge’s issues, then appeal if that isn’t successful. I have no idea how this opinion would fare in the Seventh Circuit, which has some seriously confused Section 230 precedents.
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These opinions come from Judge April Perry. For her clear-eyed and no-nonsense responses to a heartbreaking but censorial lawsuit, especially in the face of heightened concerns about important social issues like kids, addiction, and AI, I’m awarding her the Technology & Marketing Law Blog “Judge of the Day” award. 🏆
Case Citation: Angelilli v. Activision Blizzard, Inc., No. 23-cv-16566 (N.D. Ill. April 23, 2025). The Roblox dismissal: 2025 WL 1184247. The Google/Apple dismissal: 2025 WL 1181000. Other defendants in this case got the claims against them sent to arbitration.
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BONUS: The Florida AG has sued Snapchat for violations of HB 3, an anti-addiction segregate-and-suppress law with a parental consent requirement. The Florida lawsuit follows the district court’s dismissal of CCIA/NetChoice’s facial challenge to HB 3, which apparently emboldened the AG to bring its desired enforcement action. I think the Roblox ruling reinforces the dubiousness of the AG’s positions.