The first two rulings came in March. In the Bouck case, the court rejected Facebook’s Section 230 defense because Facebook’s generative AI allegedly contributed to the ad copy. In the Suddeth case, the court accepted Facebook’s Section 230 defense because the plaintiffs focused on algorithmic amplification.

Although the Bouck case initially overcame Section 230, in an under-the-radar ruling this week, the court nevertheless dismissed it as preempted by federal securities law. So the Bouck plaintiffs got a first-hand taste of the infamous Ninth Circuit switcheroo, which occurs when the plaintiffs get false hope that they might actually win because they got around Section 230, only to slam into other brick walls in their prima facie case.

The March Bouck Ruling

Section 230

Meta’s Section 230 defense turns on whether it was a co-creator of the ads sufficient to become an “information content provider.” The court says “What it means to “create” or “develop” content on the internet is not self-evident.” The court says there’s a fact dispute over whether Facebook’s contributions were material:

The alleged illegality stems from the advertisements’ content—i.e., the false statements made to Facebook and Instagram users that induced them to click on the ads. Plaintiffs have averred that Meta participated in the construction of the ads by literally generating, using artificial intelligence, the images and text in the advertisements. That degree of participation is not protected by section 230…. [cite to Forrest v. Meta]

The district court in Forrest accepted that optimizing the appearance of an ad to drive engagement was enough of a contribution to the ads’ illegality to preclude section 230 immunity. Here, in addition to averring facts which, if proven, would establish that Meta altered the ads’ appearance to maximize impressions, Plaintiffs have averred that Meta’s tools allowed the scammers to produce “AI-generated text and images” for use in the ads through its Advantage+ Creative tool.

The court says Carafano doesn’t help Facebook because:

Plaintiffs have averred that Meta created the offending information by generating some of the false statements that tricked them into the investment scheme….

Plaintiffs aver that the scammers used Meta’s Advantage+ Creative tool which, as explained, uses artificial intelligence to enhance whatever message the user inputs. If a user, for example, tells the tool that he is interested in an ad promising astronomical weekly investment returns, Advantage+ Creative will spin up a slew of ads that include the provided language and other language, images, and videos it decides will be effective in promoting the user’s chosen message….

Without question, Advantage+ Creative and the other tools in Meta’s advertising suite would not have come up with that language without the inspiration from the scammers, but that language is still the creation of Meta.

One way of reading this decision is that Section 230 has limited applicability to Generative AI outputs. If the model outputs something new (as opposed to verbatim replicating material in its index or provided by the user), then the newly created material isn’t covered by Section 230.

Aiding and Abetting Fraud

The court says Facebook’s ad review process should have detected that the ad looked scammy (see an example on the right): “Even a cursory look would warrant suspicion that the ad is fraudulent. Meta cannot, with a straight face, claim otherwise.” Facebook responded that the ad review was automated (i.e., no human performed the “cursory look” that the judge was contemplating), a response the judge calls “confounding” because “It was Meta’s decision to use technological review tools to screen ads, and it does not now get to claim it had no idea what was going on because it tasked some software program with doing the first pass.”

The judge is dabbling with some heady topics here in an unsatisfying and superficial way. At core, the judge–whether he intended to or not–is addressing the epistemological question of when a machine “knows” something. This is a crucial topic for the digital age, and it deserves more in-depth and thoughtful treatment than the judge provides here. Alternatively, the judge is accepting an argument that it’s “willful blindness” to turn over ad review to the machines. But nowadays machines do a lot of scanning and screening without humans in the loop, and it deserves some careful and thoughtful judicial review to determine if such delegation deserves to be condemned with a “willful blindness” style punishment. The judge didn’t do that either.

Contract Breach

The plaintiffs tried the oh-so-tired hack of claiming that TOS content policy restrictions should be treated as affirmative representations that the policies won’t be violated. Not this again. Sigh. The judge doesn’t take the bait (cite to Lloyd v. Facebook):

The provision of the ToS on which Plaintiffs rely does not expressly or impliedly impose a binding contractual obligation on Meta to do anything. It is much more naturally read as a creating a duty of its users not to pollute Meta’s platforms with scam investment ads….

To the extent the ToS even mentions Meta doing something to prevent fraud, it speaks only in aspirational terms…Meta, however, never promises to take concrete steps to effectuate that aspiration.

Negligence

“Plaintiffs have averred that Meta did more than just sit idle as fraudsters roamed freely on their platforms. Therefore, no “special relationship” need be pleaded for the case to move forward.”

Unruh Act

“Plaintiffs here aver that they were targeted because of their race or national origin, not that they were excluded from anything. Whatever moral condemnation that merits, it is not a violation of the Unruh Act.”

The court distinguishes Liapes because, in that case, the plaintiff complained she didn’t receive ads based on her protected classifications. Here, the plaintiffs got the ads: “Far from encountering an exclusionary practice, they encountered an inclusionary one—it is just that they wish they were not included.” The court rejects the plaintiffs’ attempt “to spin Liapes into a general prohibition on targeting based on protected characteristics.”

Case Citation: Bouck v. Meta Platforms, Inc., 2026 WL 810036 (N.D. Cal. March 24, 2026)

The March Suddeth Ruling

Because of its implications for Generative AI, the Bouck case has garnered some coverage. That coverage overshadowed a companion case, the Suddeth decision, issued by the same judge, on the same day, involving the same basic claim (Chinese stock pumping-and-dumping). Unlike the Bouck case, the judge dismissed the Suddeth case.

In Bouck, the plaintiffs claimed that Facebook helped the advertiser build and polish up the ads using Generative AI. In Suddeth, the plaintiffs claimed Facebook algorithmically amplified the ads. The court has little difficulty concluding that algorithmic amplification is governed by Section 230, citing Dyroff and Doe v. Grindr:

Their theory of algorithmic amplification is nothing more than an averment of facilitation. The core illegality—the choice to use Plaintiffs’ likeness and falsely represent that they endorsed certain investments—was exclusively undertaken by the scammers. Meta provided those scammers tools to disseminate that fraud that may well have played a role in the success of the ploy. However, as in both Dyroff and Grindr, Meta’s tools were content neutral on their own—it was the scammers who chose to manipulate those tools for illicit ends.

The judge distinguishes his own simultaneous ruling in Bouck:

[in Bouck,] the plaintiffs averred that Meta contributed materially to the development of the ads by offering generative-AI tools that developed the ultimate content of the fraudulent ads. Meta’s role in that scheme, therefore, allegedly went beyond offering neutral tools that promoted content developed exclusively by the scammers—Meta, at least according to the complaint, was a genuine co-conspirator in the creation of the offending content. Plaintiffs have failed to aver a similar level of complicity here.

The court summarizes: “Section 230 thus bars any claim which, at bottom, seeks to hold Meta liable for the damage done by the content of the fraudulent ads.”

Case Citation: Suddeth v. Meta Platforms, Inc., 2026 WL 810252 (N.D. Cal. March 24, 2026)

The June Bouck Ruling

We’re back to the classic Ninth Circuit switcheroo: the arguments that the plaintiffs used to get around Section 230 ensure the failure of the prima facie case. Here, the plaintiffs alleged state law claims to redress what is fundamentally a federal securities law claim. The court summarizes:

Meta…argues that the theory which helped Plaintiffs defeat the first motion to dismiss compels granting the second. If it is true that Meta contributed to the creation of the fraudulent ads, then this suit is necessarily based on the falsity of Meta’s statements. A suit in which a plaintiff claims the defendant made false statements which led the plaintiff to purchase securities when he otherwise would not have is quintessentially one sounding in the securities laws, even if the right of action comes from state law. SLUSA prevents precisely that type of suit from being maintained in any court, state or federal….

At bottom, Plaintiffs are trying to have it both ways. They assert Meta’s misrepresentations aided and abetted the core fraud by pushing them into scam investment groups while simultaneously maintaining that those misrepresentations were not material to their decision to purchase CLEU stock. Both cannot be true—either the misrepresentations mattered (in which case SLUSA applies) or they did not (in which case their claims fail on the merits).

This denouement will surely attract less attention than the March ruling.

The plaintiff could in theory overcome this ruling by bringing a federal securities act claim. However, I suspect the plaintiffs won’t due to the significant pleading challenges. Plus, it will be difficult or impossible to put Facebook on the hook for those claims.

Case Citation: Bouck v. Meta Platforms Inc., 2026 WL 1697630 (N.D. Cal. June 11, 2026)

The post Section 230 Doesn’t Apply to Generative AI Enhancements to Ad Copy (But the Plaintiffs Lose Anyway)–Bouck and Suddeth v. Meta appeared first on Technology & Marketing Law Blog.

Created by ChatGPT Jan. 2026

Censorship efforts tend to come in fads. Censors get fired up about a new censorship theory and try it out, but the experiment tends to not satisfy them (either because it’s struck down or doesn’t scratch their censorship itch enough) and they move onto the next censorship fad. Rinse and repeat.

Around 2020, a censorship fad was to impose common carriage obligations to restrict the editorial decision-making of Internet publishers. This fad triggered a lot of pointless conversations about 19th century technologies, such as railroads. The legal underpinnings of the fad were always obviously mockable, and most censors have already moved onto to newer censorship theories.

We’re still dealing with the detritus of the 2020ish common carriage fetishization. As one example, Ohio AG Yost sued Google claiming that Google search was a common carrier. This was always a stupid partisan lawsuit-stunt. Yet, even in the MAGA nirvana of Ohio, the lawsuit got no traction in court. Today, the Ohio appeals court unhesitatingly rejected the common carriage argument.

The court starts by observing that the legislature hasn’t spoken on this topic: “The General Assembly has not extended common carrier or public utility obligations to search engines or similar application-layer services.” Instead, the court says, there’s no carrying and no commoning taking place here.

There is No Carrying

“Google does not transport the unaltered property of others. It affirmatively creates a new expressive product, the SRP, through discretionary crawling, indexing, ranking, filtering, and formatting. This is curation and synthesis, not carriage.”

The court distinguishes search engines from telephones:

The State’s analogy to telephone service breaks down when one examines the actual flow of data. A user sends a query to Google; that query is a simple request consisting of the user’s own words or terms. Even assuming arguendo that Google has some common law duty to transmit the incoming query fairly and unaltered, the State’s complaint centers on the return leg – the SRP Google delivers back to the user.

That return data is not the user’s property, nor is it third-party content transmitted unaltered. Google receives the query, consults its own proprietary indices, applies its own ranking algorithms, makes relevance and quality judgments, filters results, and assembles a new, curated response that did not previously exist in that form. The SRP is Google’s own expressive product, not the user’s or any third party’s property being carried back unaltered. Traditional common carriers do not create the cargo they transport; they accept the shipper’s or speaker’s existing goods or message and deliver them substantially as received. Google does neither on the return leg.

There is No Commoning

The “common” part refers to the nondiscrimination obligations. The court is like, what are we even talking about…?

Even assuming for the sake of argument that Google’s Terms of Service would not, by themselves, justify refusing certain user inputs (queries), the Attorney General’s concern lies primarily with outputs – the ranking, presentation, and curation of search results.

At this point the common carrier doctrine encounters a fundamental mismatch. Traditional common carrier regulation centers on the relationship between price and service. Courts and regulators assess whether rates are just and reasonable. Google, however, provides its core search service to users at no direct charge. Its revenue comes overwhelmingly from advertising, not from the users whose results the State seeks to regulate. There is no traditional “rate” for the court to review or adjust. Scholarship in this area often concludes classic common carrier rate regulation is poorly suited to two-sided, zero-price-to-user, innovation-driven markets; any nondiscrimination obligation imposed here would necessarily target the content and ordering of outputs rather than prices, raising a distinct and more constitutionally sensitive set of issues.

Thus, even if one were to accept the State’s position that Google qualifies as a common carrier, fashioning an appropriate remedy would take this Court far outside the traditional judicial role in common carrier cases. The common law of common carriers does not supply a ready template for regulating the editorial output of a free service whose business model does not depend on user payments.

But Google is Big!

The court says: “There is no question that Google Search exerts enormous influence over the flow of information [but] it does not dispense with the common carrier doctrine’s two core requirements for judicial intervention.”

The court then extensively chastizes AG Yost for trying to legislate through litigation and reminds him of the proper role of judges. For example, it says “This Court will not accomplish by judicial fiat what the legislature has not chosen to do.” The court adds some mild benchslaps like:

It appears that the Attorney General singled out Google because of its monopoly-like status in this field. But ubiquity and market share do not justify novel judicial intervention here.

Federal preemption

“treating search engines as common carriers under state law would raise serious questions of conflict with federal communications policy.”

First Amendment

“The undisputed facts and the State’s legal arguments make clear that the core concern underlying this litigation is the regulation of Google’s editorial judgments in curating, ranking, and presenting information. This is, at bottom, an attempt to regulate speech.”

The court should have stopped talking there, but it didn’t:

We do not discount the legitimate policy concerns that animate the State’s position. Google’s dominant market position gives it outsized influence over the modern public square. Congressional investigations and disclosures regarding government-platform communications have raised serious questions about content moderation practices, viewpoint discrimination, and the influence of dominant technology platforms. [cite to Final Report: The Weaponization of the Federal Government, and that so gets a hard eyeroll from me.] These issues may indeed support a compelling governmental interest in narrowly tailored legislation designed to promote transparency or address demonstrable harms.

But the ancient common carrier doctrine is not the proper vehicle for addressing these concerns. Imposing common carrier obligations on Google’s search functions would necessarily compel the company to carry, rank, or display speech it would otherwise choose to de-emphasize or exclude — precisely the type of editorial discretion the First Amendment protects when exercised by private entities compiling and presenting third-party speech. [cite to Moody and Miami Herald v. Tornillo]

Conclusion

The court concludes:

Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it. Because Google’s search results are its own expressive product rather than neutral carriage, the common carrier doctrine does not fit this business model. Any broader regulatory response belongs to the legislative branch.

* * *

Among the many ways this opinion feels dated, there is a lot less emotional investment in Google’s blue organic links now that Google is highlighting AI overviews on its search results pages. Maybe we’ll get a round 2 of litigation claiming that the AI outputs should be treated like common carriers.

I don’t see how anyone who once jumped on the “Internet publishers are common carriers” bandwagon can read this opinion and not feel terrible about that position. This opinion is a thorough and persuasive rejection of the arguments.

Note that the court’s emphatic deference to the legislatures raises its own set of questions. We have seen many states enact terrible censorial legislation, including common carriage-like obligations in the Florida and Texas social media censorship laws. So I could easily see the Ohio legislature reading this opinion and responding “censorship challenge accepted!” Yet, the court opinion simultaneously makes it clear that the legislature doesn’t really have this authority. As the court also says, “Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it.” So for all of the opinion’s unnecessary digressions about legislative power, the opinion itself signals a huge flashing stoplight to legislatures considering whether they should jump on the fizzled common carriage fad.

Personnel note 1: This opinion was authored by Presiding Judge Andrew J. King, whose official bio says that “His prior public service includes serving as an…Attorney General for Dave Yost.” The opinion’s critiques of AG Yost’s censorial overreaches must sting a little harder when the author worked in his office.

Bloomberg Law also reports:

King is vying for the Republican nomination for one of two state Supreme Court seats up this year. A video he posted Monday on his campaign’s Facebook page described him as “the pro-Trump constitutional conservative”

AG Yost’s arguments couldn’t even sway a MAGA partisan seeking higher office. Sad!

Personnel note 2: Following an unsuccessful run for Ohio governor, Dave Yost recently stepped down as state AG. Per Wikipedia, he now has a leadership role in the “Alliance Defending Freedom, a conservative Christian legal advocacy group.” [And that differs from the Ohio AG’s office how…? <rimshot>] The press release. With the change in leadership in the Ohio AG’s office, will that affect the office’s willingness to keep litigating this case? My guess is this lawsuit was Yost’s idiosyncratic quest and not worth further AG office investments now that he’s gone.

Prior Blog Posts on Common Carriage

• Google Search Isn’t a Common Carrier–Richards v. Google
• Ninth Circuit Deletes RNC’s Lawsuit Over Gmail’s Spam Filter–RNC v. Google
• Google Search Isn’t a “Common Carrier” (DUH)–Ohio v. Google
• Court Blows Up Gmail’s Section 230 Protection, But Allegations of Biased Spam Filtering Still Fail–Republican National Committee v. Google
• Statement on the Supreme Court’s Ruling in Moody v. NetChoice
• Section 230 Protects Gmail’s Spam Filter–RNC v. Google
• Is Google’s Search Engine a “Common Carrier”? (Seriously???)–Ohio ex rel Yost v. Google
• Big Ruling for Free Speech: Most of Florida’s Social Media Censorship Law (SB 7072) Remains Enjoined–NetChoice v. Attorney General
• Texas and Its Amici Try to Justify Censorship in Their NetChoice v. Paxton Fifth Circuit Briefs
• Court Enjoins Texas’ Attempt to Censor Social Media, and the Opinion Is a Major Development in Internet Law–NetChoice v. Paxton
• Anti-Zionist Loses Lawsuit Over Social Media Account Suspensions–Martillo v. Facebook
• Texas Enacts Social Media Censorship Law to Benefit Anti-Vaxxers & Spammers
• 31 Bogus Passages from Florida’s Defense of Its Censorship Law–NetChoice v. Moody
• Florida Hits a New Censorial Low in Internet Regulation (Comments on SB 7072)
• Deconstructing Justice Thomas’ Pro-Censorship Statement in Knight First Amendment v. Trump
• Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’–De Souza Millan v. Facebook
• Are Social Media Services “State Actors” or “Common Carriers”?

The post Google Search Isn’t a Common Carrier (duh)–Ohio v. Google appeared first on Technology & Marketing Law Blog.

On appeal, the Fifth Circuit embraces its characteristic chaos. First, it stayed the injunction without issuing an opinion. This is always terrible. Lifting the injunction changes the status quo without explaining why, making it virtually impossible to appeal. Courts should never do this. The injunction stay also potentially unleashed immediate action from AG/Senate candidate Paxton, who would love to bring another lawsuit against Google and Apple to try to distract Texas voters from his multitudinous political and personal flaws.

Then, a few days after staying the injunction, the Fifth Circuit issued a written opinion that, as usual, is untethered from US law. The opinion is also inappropriately brief and characteristically deficient on actual fact analysis. The published opinion is issued per curiam, which I suspect was intended to protect the authoring judge from accountabiilty for this turd.

The Fifth Circuit Opinion

Intermediate Scrutiny, Not Strict Scrutiny

The opinion says intermediate scrutiny applies because:

App store transactions are commercial in nature. After all, users browsing an app store can see a catalog of applications, obtain additional information, and download or purchase an application. App listings propose commercial transactions, regardless of whether any monetary payment is made. In fact, the “payment” for apps that are purportedly “free” is access to user data and private information….Detailed user data, including that of minors, is the lifeblood of the app store monetization ecosystem.

There are several problems with this:

• The fact that Google and Apple are for-profit entities and label themselves “stores” doesn’t automatically make everything they do “commercial speech.” Consider an analogy to Google search results. Some results are ads. Those are commercial speech. Some organic results are from commercial entitie hoping to catch customers. These may be commercial speech if they propose a transaction, but otherwise not. Some organic results are from non-commercial actors not looking to make any money at all. These are not commercial speech, even if Google is “monetizing” the page through the other ads elsewhere. Characterizing all Google search results as proposing a transaction would be a categorical error. I believe this opinion makes the same error for app store listings.
• In particular, many apps may not be commercial offerings at all. They could be apps from government entities, nonprofits, schools, religious organizations, or altruits who are giving their apps away for free with no strings attached. If a religious organization passes out leaflets on the street, they are not engaging in a commercial transaction of transferring leaflets.
• Many apps do not collect any private information from users, even if they are free-to-download. In those cases, there is no data “payment” at all. The opinion just made this fact up, using a factually unsupportable stereotype.
• The age authentication mandate is imposed on the app stores, but the opinion seems to be discussing the listings from the app developers. Is the app store carrying those listings “proposing a commercial transaction”? Part of the regulated activity is allowing users to access the app stores in the first place, before the user sees any listings. So the court has shifted the timing of the legally regulated activity to tell the story it wants to tell.

This passage is consistent with the prevailing Fifth Circuit opinion-drafting ethos, where it’s OK if the court doesn’t have the facts it wants because it can fill in the gaps with fiction.

In a footnote, the opinion says “SB2420 may not regulate speech at all, given that it does not target any substantive content but instead regulates commercial conduct with an incidental relationship to speech.” The so-called “commercial conduct” here would be the distribution of speech (the apps), but sure, let’s call that “an incidental relationship to speech.” Too bad the panel didn’t write that opinion.

The opinion cites the FSC v. Paxton opinion only twice, neither time to engage with the Supreme Court’s extensive discussion about why intermediate scrutiny was appropriate for age authentication mandates only if the mandates supported restrictions on content that is obscene as to minors–which is not the case. No one really believes the Supreme Court meant what it said in the FSC case (or any other case the Court is issuing nowadays), but the Fifth Circuit couldn’t even be bothered to engage with the opinion text.

Application of Intermediate Scrutiny

The opinion offers these conclusory statements without any further fact analysis:

Requiring age verification, parental consent, and app-related content ratings likely directly and materially advances Texas’s substantial interest in protecting children’s data, safety, and privacy in a digital world. Thus, there is likely a “reasonable fit” between SB2420’s methods and goals allowing parents to direct and supervise children’s downloads of apps and in-app purchases. That some works protected by the First Amendment may be the object of app downloads or in-app purchases does not categorically exempt them from ordinary regulations governing commercial transactions.

Restating a doctrine’s elements, without applying any of the facts to the elements, is the kind of rookie mistake that earns a C grade at best on a 1L final exam.

Disregarding Statutory Exclusions

The parental consent requirements exclude “emergency services and apps provided by an entity that develops standardized tests for use in postsecondary education.” The opinion disregards the favoritism towards these two categories because:

• the “emergency-services exception is not likely content-based but, instead, focuses on why the service is needed, not what is being communicated….Users do not need to create an account to access and use the emergency service app.” Huh? If the only type of permitted communication is content related to an emergency, how is that not content-based?
• the standardized test exclusion “which focuses on the identity of the speaker, does not necessarily reflect a content preference, but rather the reality that students often need to take tests….The speaker-based distinction appears to be content-neutral, not content-based, in discriminating among ideas or viewpoints.” The exception is for exams, which sounds pretty content-based to me. As a cheat, the opinion adds that the district court could just sever this provision if it’s unconstitutional.

No Vagueness

The opinion says the mandatory content rating scheme isn’t vague because the app stores can assume the apps set their ratings in good faith. The opinion says other challenged phrases are “plain and ordinary language [that] outlines its straightforward meaning” or have “well established and easily understood” meanings. Plus, there’s always the severability cheat.

Overbroad Injunction

The opinion says only the plaintiffs can receive the benefit of a court injunction, not any other regulated publishers.

Summation

The opinion rounds up its normative views:

The interests of Texas and the public interest coincide. Texas has a substantial, if not compelling, interest in protecting children, and parents need to have the necessary information to make informed choices affecting their children’s upbringing.

The need to protect children is intensified in the digital world, where app stores have violated existing consumer protection and child privacy laws for years, despite a federal consent decree. Absent SB2420, parents’ ability to protect their children is imperiled because app stores have encouraged minors to download applications and make in-app purchases without giving parents accurate content information or obtaining their informed consent. Any purported burden on app stores and developers is minimal because SB2420 requires only “commercially reasonable” verification methods and allows developers to use “widely adopted industry standards” in determining age ratings and those related to corresponding content.

Just about every word in this summation is wrong or misleading. Read my Segregate-and-Suppress paper for a fuller explanation of why.

Implications

Observation #1: Google and Apple didn’t challenge the law. They may be among the wealthiest companies that have ever existed in human history, but they let proxies and others carry their water and tell their story.

Observation #2: Despite the ongoing legal proceedings, and without even waiting to see the written opinion, Google and Apple immediately folded after the Fifth Circuit stayed the injunction. Both immediately complied with the law (Apple, Google).

Observation #3: The pliability of Google and Apple is nothing new. They have kowtowed to censors throughout the globe, so why not do so in the US too? The app stores have zero backbone when it comes to defending their editorial decision-making. As a reminder, the app stores didn’t challenge any of the many TikTok bans, even those that directly banned app stores from distributing TikTok.

Observation #4: Now that Apple and Google have rolled, what is the likelihood they will undo their implementation if the law gets overturned on further proceedings? I would rank the odds at zero. Once a censorship infrastructure is implemented, it rarely is ripped back out. This type of sticky interim compliance is a prime reason why censors can win, even if they pass unconstitutional laws.

Observation #5: The likelihood that regulated publishers will engage in interim compliance shows some problems with the Moody v. NetChoice opinion, which raised the bar on facial constitutional challenges. (This opinion observes, without doing any of the analytical work, that “It is highly unlikely that Plaintiffs have met this ‘rigorous standard'” for a facial challenge set by the Moody decision). If a publishers has to break the law and expose itself to the associated legal consequences to find out if a law is unconstitutional, we get a lot more censorship compliance and a lot fewer constitutional challenges.

Case Citation: Students Engaged in Advancing Texas v. Paxton, No. 25-51073 (5th Cir. June 4, 2026)

* * *

Blog Posts on Segregate-and-Suppress Obligations

• How Often Do Consumers Balk at Doing Online Age Authentication?
• Court Enjoins Another Arkansas Segregate-and-Suppress Law–NetChoice v. Griffin
• Too Many Courts Are Letting States Take Wrecking Balls to the Internet (Roundup)
• Texas Judge Enjoins App Store Authentication Law–CCIA and SEAT v. Paxton
• Courts Enjoin Internet Censorship Laws in Louisana and Arkansas
• Challenge to Maryland’s “Kid Code” Survives Motion to Dismiss–NetChoice v. Brown
• My Testimony Against Mandatory Online Age Authentication
• Read the Published Version of My Paper Against Mandatory Online Age Authentication
• Prof. Goldman’s Statement on the Supreme Court’s Demolition of the Internet in Free Speech Coalition v. Paxton
• Court Permanently Enjoins Ohio’s Segregate-and-Suppress/Parental Consent Law–NetChoice v. Yost
• Arkansas’ Social Media Safety Act Permanently Enjoined—NetChoice v. Griffin
• Why I Emphatically Oppose Online Age Verification Mandates
• California’s Age-Appropriate Design Code (AADC) Is Completely Unconstitutional (Multiple Ways)–NetChoice v. Bonta
• Another Conflict Between Privacy Laws and Age Authentication–Murphy v. Confirm ID
• Recapping Three Social Media Addiction Opinions from Fall (Catch-Up Post)
• District Court Blocks More of Texas’ Segregate-and-Suppress Law (HB 18)–SEAT v. Paxton
• Comments on the Free Speech Coalition v. Paxton SCOTUS Oral Arguments on Mandatory Online Age “Verification”
• California’s “Protecting Our Kids from Social Media Addiction Act” Is Partially Unconstitutional…But Other Parts Are Green-Lighted–NetChoice v. Bonta
• Section 230 Defeats Underage User’s Lawsuit Against Grindr–Doll v. Pelphrey
• Five Decisions Illustrate How Section 230 Is Fading Fast
• Internet Law Professors Submit a SCOTUS Amicus Brief on Online Age Authentication–Free Speech Coalition v. Paxton
• Court Enjoins the Utah “Minor Protection in Social Media Act”–NetChoice v. Reyes
• Another Texas Online Censorship Law Partially Enjoined–CCIA v. Paxton
• When It Comes to Section 230, the Ninth Circuit is a Chaos Agent–Estate of Bride v. YOLO
• Court Dismisses School Districts’ Lawsuits Over Social Media “Addiction”–In re Social Media Cases
• Ninth Circuit Strikes Down Key Part of the CA Age-Appropriate Design Code (the Rest is TBD)–NetChoice v. Bonta
• Mississippi’s Age-Authentication Law Declared Unconstitutional–NetChoice v. Fitch
• Indiana’s Anti-Online Porn Law “Is Not Close” to Constitutional–Free Speech Coalition v. Rokita
• Fifth Circuit Once Again Disregards Supreme Court Precedent and Mangles Section 230–Free Speech Coalition v. Paxton
• Snapchat Isn’t Liable for Offline Sexual Abuse–VV v. Meta
• 2023 Quick Links: Censorship
• Court Enjoins Ohio’s Law Requiring Parental Approval for Children’s Social Media Accounts–NetChoice v. Yost
• Many Fifth Circuit Judges Hope to Eviscerate Section 230–Doe v. Snap
• Louisiana’s Age Authentication Mandate Avoids Constitutional Scrutiny Using a Legislative Drafting Trick–Free Speech Coalition v. LeBlanc
• Section 230 Once Again Applies to Claims Over Offline Sexual Abuse–Doe v. Grindr
• Comments on the Ruling Declaring California’s Age-Appropriate Design Code (AADC) Unconstitutional–NetChoice v. Bonta
• Two Separate Courts Reiterate That Online Age Authentication Mandates Are Unconstitutional
• Minnesota’s Attempt to Copy California’s Constitutionally Defective Age Appropriate Design Code is an Utter Fail (Guest Blog Post)
• Do Mandatory Age Verification Laws Conflict with Biometric Privacy Laws?–Kuklinski v. Binance
• Why I Think California’s Age-Appropriate Design Code (AADC) Is Unconstitutional
• An Interview Regarding AB 2273/the California Age-Appropriate Design Code (AADC)
• Op-Ed: The Plan to Blow Up the Internet, Ostensibly to Protect Kids Online (Regarding AB 2273)
• A Short Explainer of Why California’s Social Media Addiction Bill (AB 2408) Is Terrible
• A Short Explainer of How California’s Age-Appropriate Design Code Bill (AB2273) Would Break the Internet
• Is the California Legislature Addicted to Performative Election-Year Stunts That Threaten the Internet? (Comments on AB2408)
• Omegle Denied Section 230 Dismissal–AM v. Omegle
• Snapchat Isn’t Liable for a Teacher’s Sexual Predation–Doe v. Snap
• Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)
• Minnesota Wants to Ban Under-18s From User-Generated Content Services
• California’s Latest Effort To Keep Some Ads From Reaching Kids Is Misguided And Unconstitutional (Forbes Cross-Post)
• Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)
• Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230–Backpage v. McKenna
• MySpace Wins Another 47 USC 230 Case Over Sexual Assaults of Users–Doe II v. MySpace
• MySpace Gets 230 Win in Fifth Circuit–Doe v. MySpace
• Website Isn’t Liable When Users Lie About Their Ages–Doe v. SexSearch

The post Fifth Circuit Keeps Doing Fifth Circuit Things 📉–SEAT v. Paxton appeared first on Technology & Marketing Law Blog.

Note: I checked her LinkedIn page and she didn’t indicate that she has a law degree or is licensed to practice as a lawyer. Legal training or a law license isn’t required to engage in legal theorizing, but it raises some questions about what “legal strategy services” she can offer and what evidentiary privileges apply to any conversations with her actual or prospective clients.

Katherine Starr also appears to be quite interested in trademarks. The footer on her website says:

KATHERINE STARR is a trademark of Katherine Starr. Negligent Dating, Negligent Digital Access, Negligent Digital Architecture, Digital Maritime Doctrine, Negligent Frequency, The Negligent Shield, and Negligent Legal Architecture are service marks of KStarr Enterprises, LLC

If you are wondering, the “digital maritime doctrine” is “a legal framework applying maritime principles like duty of seaworthiness and flag of convenience to modern digital platforms.” I think Admiralty Law has many underexplored insights to offer Internet Law.

[Little-known fact: When I was writing my first Internet Law paper in 1993, the student editor editing my paper independently shared a Maritime Law course outline with me. So I did in fact think about how the Law of the Sea might apply to the Law of the Internet back in 1993! However, I didn’t have the legal vision and insights that Starr has brought to that question.]

Starr wrote a book titled Where There Are Rights. (Yes, she claims a trademark in the book title, despite the trademark rule that a book title isn’t eligible for trademark protection unless it’s part of a series). She describes the book:

Drawing on her dual perspective as a Legal Theorist and Two-Time Olympian, Starr introduces trademarked legal frameworks that name what courts, policymakers, and institutions have ignored: that negligence has an architecture, a frequency, and a delegation pattern, frameworks now ready to be tested in law.

To Starr’s credit, she didn’t just hypothesize that her frameworks were “ready to be tested in law.” She went ahead and actually tested them in court! She brought a pro se lawsuit against Google. Props (?) for walking the walk.

As a trademark geek, I’m intrigued by the concept of “trademarked legal frameworks.” How can a “legal framework” become trademarkable, and what rights would that trademark confer? Could a lawyer sue another lawyer for bringing a claim based on a “trademarked legal framework”? (Especially if Starr isn’t a licensed lawyer and couldn’t file claims based on those frameworks for any clients). Sounds like a good but challenging trademark law final exam question.

The court describes Starr’s claims against Google:

She alleges that when users search for her legal frameworks using Google’s search engine, the frameworks themselves appear, but the search results “fail to return Plaintiff’s name in connection with these works.” She also alleges that Google’s search engine turns up other Katherine Starrs, but it is unclear from the complaint whether this occurs when a user searches for Starr’s legal frameworks or simply for the name “Katherine Starr.” Starr alleges that this conduct has “divert[ed] recognition, professional opportunity and search authority away” from Starr, who is “the rightful originator of the frameworks.” She also alleges that her business, Plaintiff KSTARR Enterprises LLC (“KSTARR”) has “experienced loss of prospective business opportunities, reputational dilution, and economic harm.”

If you want to indulge your inner legal nerd, these arguments raise all kinds of fascinating conceptual issues to cogitate and debate. For example, how could a “trademarked legal framework” confer a right of attribution? If Starr isn’t a licensed lawyer, then exactly what professional opportunities have been disrupted by not attributing the “legal frameworks” to her?

None of these thorny doctrinal questions get addressed. Instead, we get a perfunctory opinion granting a motion to dismiss–the kind of standard opinion we see in pro se cases that are not close.

Lanham Act False Designation of Origin

The magistrate says Starr “does not allege that Google placed Starr’s or KSTARR’s mark on any goods or used or displayed her mark in the sale or advertising of services rendered in commerce….Starr does not allege that Google is selling anything.”

Tortious Interference

Though Starr alleges that Google generally understood that her “digital presence” was important to her business relationships, she fails to make any nonconclusory allegations that Google knew about prospective business relationships between Starr and specific attorneys, legal teams, academic institutions, or legal platforms…any effect on Starr’s business relationships was likely an incidental effect of Google’s broader “search algorithm and indexing practices.”

“Negligent Digital Architecture” and “Violation of Commercial Attribution Rights”

Starr alleges she is entitled to relief based on two legal theories she created: “negligent digital architecture” and “violation of commercial attribution rights.” In support of the former claim, she alleges that Google “owes a duty of care to ensure that its digital architecture does not foreseeably cause reputational or attribution-related harm to individuals whose identities and authored works are indexed on its platform.” According to Starr, Google was negligent in failing to “design[ ] or maintain[ ] a digital infrastructure that ensures accurate author attribution.” In support of the latter claim, Starr states that “[b]y structurally detaching Plaintiff’s name from search results referencing her original legal frameworks, Defendant has deprived Plaintiff of the right to be accurately represented as the author of her work in digital information environments.”

The District Judge should decline Starr’s invitation to recognize these novel causes of action. By Starr’s own admission, her “negligent digital architecture” claim is based in her own legal frameworks, not state or federal law. The undersigned also cannot identify any cause of action under state or federal law for “violation of commercial attribution rights.”

Starr tried to reposition the “negligent digital architecture” claim as a standard products liability claim. This doesn’t work: “Starr does not allege that Google’s search engine is ‘unreasonably dangerous’ or offer any facts suggesting that Google’s search algorithms are unreasonably dangerous.”

* * *

This is a magistrate judge’s R&R, so I imagine we’ll hear about this case at least one more time.

Google invoked Section 230 as a defense, but the court didn’t need to address it.

Starr’s claims challenge Google’s core algorithmic search results offerings. Lawsuits over Google’s organization and dissemination of organic search results have gone nowhere, even when they are not litigated pro se.

Case Citation: Starr v. Google LLC, 2026 WL 1603313 (W.D. Tex. June 3, 2026). The CourtListener page. The initial complaint.

The post Google Defeats “Negligent Digital Architecture” Claim–Starr™ v. Google appeared first on Technology & Marketing Law Blog.

Created by ChatGPT May 2026

I’m going to analogize bounce rates to the rate that consumers fail to overcome age authentication walls, which I’ll call the “balk rate.” (We could more granularly distinguish between voluntary refusals and technical inability, but the outcome is the same either way). There is no single standard or expected balk rate for age authentication walls. Instead, a service’s balk rate likely varies based on factors such as:

• the nature of the destination. How critical is it that the consumer overcome the wall? For example, there will be a lower balk rate for access to an essential government service than a site that consumers consider non-essential. A related issue is how long the consumer anticipates the relationship will run. Consumers who expect a one-off interaction are more likely to balk than a consumer planning to make a long-term commitment.
• the availability of competitive alternatives that have less onerous age authentication procedures. For example, pornography consumers can easily find online alternatives that don’t require age authentication (at least for now), so those consumers are more likely to balk when they encounter an age authentication wall.
• the nature of the authentication process.
  • how many steps are involved in the process? Each additional step in the authentication process will increase the overall balk rate.
  • relatedly, how much time does the process take? Consumers are impatient.
  • what disclosures must the consumer make to overcome the wall? The more sensitive the disclosure, the higher the balk rate. Most age authentication processes that achieve decent accuracy levels necessarily rely on the disclosure of sensitive consumer information (such as government IDs or face scans) that will produce a lot of balks, but there still may be balk rate differences between them.
  • how much trust do consumers have in the authenticator? Trust is also a proxy for consumer concerns about privacy and security.

There are likely other considerations I didn’t capture here. I welcome your suggestions.

In this post, I’ll highlight three data points about balk rates. (If you know of other published data on this topic, please email me).

Pornhub’s Experiences

Pornhub has shared some data about its balk rates. In Louisiana, Pornhub says its traffic dropped 80% in Louisiana when it implemented an age authentication wall. Elsewhere, Porhub has said that “over 99% of users subjected to a verification requirement did not verify their age.”

Going back through the factors I identify above, you can see why these numbers might be so high. Pornography services have competitive alternatives that aren’t age-authenticated, and there are high privacy and security risks to pornography consumers.

The high balk rates also explain why Pornhub opted-out of states that have imposed age authentication mandates. If it’s going to lose 99% of those consumers due to the mandate, it’s already out of the market either way, so officially withdrawing from the market has no real opportunity cost.

An EU Study

In 2022, the EU did a comprehensive study of age authentication balk rates in the “Pilot Execution Report – first large scale euCONSENT pilot“. The study assigned EU consumers three authentication “missions” to complete and then studied consumers’ mission completion rates.

The missions differed depending on the age and status of the user, so it’s pretty hard to draw any definitive conclusions. Most importantly, the study doesn’t reveal the completion rate of the first mission, which was to do the initial age authentication. To me, this seemed like the most essential datapoint, but the report didn’t mention it. The second mission was to navigate to another site without reauthenticating. That had about an 80% completion rate. The third mission was to jump through a more rigorous authentication hoop. Only about 63% of the group who completed the first mission were able to complete that third mission.

There was a follow-on study (“Pilot Execution Report – third euCONSENT“) with more missions. Collectively, some of the data points that stood out to me:

• 12% of adults and 21% of parents failed to complete the authentication and reauthentication process; and 22% of parents failed to complete the parental authorization process.
• 85% of consumers said they wouldn’t wait more than 5 minutes to do an authentication process, even if that was a one-time process for a permanent web-wide authentication.
• If given the choice, 68% of consumers preferred face scans, 15% preferred document scanning, and only 3% preferred credit card authentication (which, as I mention in my Segregate-and-Suppress paper, isn’t considered to be a credible authentication nethod).
• 21% of the study participants reported a technical problem trying to do the authentication.
• With respect to trying to buy alcohol online, 22% said they would do something other than complete the online age authentication.

I’ve been through these studies a few times, and each time I was confused by the methodology and results. The reports left open obvious questions, may be specific to the EU’s consent process, and may be outdated based on developments in the past 4 years. And yet, these reports make it clear that there will be tens of millions of EU consumers who will fail to navigate (or would prefer not to navigate) the authentication systems the EU is putting in place.

The Carnegie Mellon Study

A Carnegie Mellon research team (plus one Princeton researcher) posted a preview of an experiment on age authentication balk rates. The study is called “Measuring User Responses to Online Age Verification Mechanisms Through A Deceptive Experiment.” The researchers solicited participants to watch R-rated video clips. However, before the survey takers could watch the clips, the researchers said they had to navigate an age authentication barrier to see how they reacted. The survey indicates the following balk rates:

• checkbox self-attestation: 1% balk rate (i.e., 99% completion rate). This option is meaningless because I don’t believe any regulators consider self-attestation a permissible method of age authentication.
• “Email-based estimation”: 14% balk rate.
• “AI facial estimation”: 49% balk rate.
• government-ID methods: 73-77% balk rate (the variation depended on assurances about privacy and security).

The researchers conclude: “technically robust verification methods may be ineffective in practice if users systematically decline to comply.”

Two observations of mine:

• Consistent with the EU report showing consumers prefer face scans over document ID reviews, the balk rate was noticeably lower for face scans than government-issued IDs (though both balk rates were high). As face scans roll out across the Internet, I wonder if consumers are becoming desensitized to doing face scans and increasingly view them as an inevitable and standard price of admission?
• The preview doesn’t mention what motivations participants had to complete the process. For example, were they promised any compensation? If the only motivation for navigating the authentication wall was altruism (i.e., to support the research), then we should expect much higher balk rates than we would find in the field, when users are trying to achieve their self-directed objectives.

Implications

The Carnegie Mellon paper references the constitutional principle of tailoring, i.e., how likely is the law to achieve its desired outcome? Higher balk rates are a sign that an age authentication mandate isn’t appropriately tailored because it’s suppressing constitutionally protected conversations. However, there is no numerical cap on balk rates before an age authentication mandate becomes constitutionally impermissible. Instead, in the Free Speech Coalition v. Paxton decision, the majority opinion said “adults have no First Amendment right to avoid age verification.” That implies that the court may not care about balk rates at all.

Age authentication mandates always shrink the Internet, and balk rates are one way of measuring the shrinkage. Every time an adult fails to navigate an age authentication process (whether by choice or due to technical challenges), that’s another lost customer for the authenticating service. If the Carnegie Mellon study accurately predicts field behavior, face scans or document reviews will cost the authenticating services half of their customers or more. Such high balk rates would collapse the Internet ecosystem, because there won’t be enough authenticating customers for services to operate profitably. Even a 10-20% balk rate will have major consequences for many services that are already operating on razor-thin margins, such as content publishers who have already seen their ad revenues shrink over time. These Internet shrinkages have significantly economic and social consequences for all of us, yet regulators routinely ignore these issues completely when clamoring for more age authentication manates.

To reduce balk rates, governments around the globe are trying to build an infrastructure to reduce the friction of age authentication. Less friction addresses one problem (the balk rate) and creates a host of other problems.

The EU plans to rely on widespread adoption of digital IDs combined with an API wrapper that exposes only age authentication information to services around the Internet. Digital IDs raise a host of privacy and security concerns. They are also the foundational infrastructure for comprehensive government monitoring and control of constituent movements online. I’m also unclear how the EU plans to address the fact that tens of millions of EU residents won’t have digital IDs for the foreseeable future.

Alternatively, some governments are trying to force one-time age authentications when a user acquires a device or first logs into an app store. By moving the age authentication process forward to a central point (the device or the app store), the user avoids doing repetitive authentications downstream. However, that assumes the user can or wants to complete the authentication in the first place; anyone blocked at the beginning is stuck. The high-value authentication data also will act as attractive centralized honeypots for malefactors. Also, this approach normalizes age authentication and will make it seem routine for interactions that today don’t require age authentication. It will likely shift the default about when we need to age-authenticate. Today, we can enter websites or use apps without presenting credentials, just as we do in most physical spaces; in the future, that presumption will be reversed. Finally, whoever is doing the centralized authentication won’t do it for free. A small number of entities are poised to extract monopoly rents by taking a cut of this government mandated process.

* * *

Blog Posts on Segregate-and-Suppress Obligations

• Court Enjoins Another Arkansas Segregate-and-Suppress Law–NetChoice v. Griffin
• Too Many Courts Are Letting States Take Wrecking Balls to the Internet (Roundup)
• Texas Judge Enjoins App Store Authentication Law–CCIA and SEAT v. Paxton
• Courts Enjoin Internet Censorship Laws in Louisana and Arkansas
• Challenge to Maryland’s “Kid Code” Survives Motion to Dismiss–NetChoice v. Brown
• My Testimony Against Mandatory Online Age Authentication
• Read the Published Version of My Paper Against Mandatory Online Age Authentication
• Prof. Goldman’s Statement on the Supreme Court’s Demolition of the Internet in Free Speech Coalition v. Paxton
• Court Permanently Enjoins Ohio’s Segregate-and-Suppress/Parental Consent Law–NetChoice v. Yost
• Arkansas’ Social Media Safety Act Permanently Enjoined—NetChoice v. Griffin
• Why I Emphatically Oppose Online Age Verification Mandates
• California’s Age-Appropriate Design Code (AADC) Is Completely Unconstitutional (Multiple Ways)–NetChoice v. Bonta
• Another Conflict Between Privacy Laws and Age Authentication–Murphy v. Confirm ID
• Recapping Three Social Media Addiction Opinions from Fall (Catch-Up Post)
• District Court Blocks More of Texas’ Segregate-and-Suppress Law (HB 18)–SEAT v. Paxton
• Comments on the Free Speech Coalition v. Paxton SCOTUS Oral Arguments on Mandatory Online Age “Verification”
• California’s “Protecting Our Kids from Social Media Addiction Act” Is Partially Unconstitutional…But Other Parts Are Green-Lighted–NetChoice v. Bonta
• Section 230 Defeats Underage User’s Lawsuit Against Grindr–Doll v. Pelphrey
• Five Decisions Illustrate How Section 230 Is Fading Fast
• Internet Law Professors Submit a SCOTUS Amicus Brief on Online Age Authentication–Free Speech Coalition v. Paxton
• Court Enjoins the Utah “Minor Protection in Social Media Act”–NetChoice v. Reyes
• Another Texas Online Censorship Law Partially Enjoined–CCIA v. Paxton
• When It Comes to Section 230, the Ninth Circuit is a Chaos Agent–Estate of Bride v. YOLO
• Court Dismisses School Districts’ Lawsuits Over Social Media “Addiction”–In re Social Media Cases
• Ninth Circuit Strikes Down Key Part of the CA Age-Appropriate Design Code (the Rest is TBD)–NetChoice v. Bonta
• Mississippi’s Age-Authentication Law Declared Unconstitutional–NetChoice v. Fitch
• Indiana’s Anti-Online Porn Law “Is Not Close” to Constitutional–Free Speech Coalition v. Rokita
• Fifth Circuit Once Again Disregards Supreme Court Precedent and Mangles Section 230–Free Speech Coalition v. Paxton
• Snapchat Isn’t Liable for Offline Sexual Abuse–VV v. Meta
• 2023 Quick Links: Censorship
• Court Enjoins Ohio’s Law Requiring Parental Approval for Children’s Social Media Accounts–NetChoice v. Yost
• Many Fifth Circuit Judges Hope to Eviscerate Section 230–Doe v. Snap
• Louisiana’s Age Authentication Mandate Avoids Constitutional Scrutiny Using a Legislative Drafting Trick–Free Speech Coalition v. LeBlanc
• Section 230 Once Again Applies to Claims Over Offline Sexual Abuse–Doe v. Grindr
• Comments on the Ruling Declaring California’s Age-Appropriate Design Code (AADC) Unconstitutional–NetChoice v. Bonta
• Two Separate Courts Reiterate That Online Age Authentication Mandates Are Unconstitutional
• Minnesota’s Attempt to Copy California’s Constitutionally Defective Age Appropriate Design Code is an Utter Fail (Guest Blog Post)
• Do Mandatory Age Verification Laws Conflict with Biometric Privacy Laws?–Kuklinski v. Binance
• Why I Think California’s Age-Appropriate Design Code (AADC) Is Unconstitutional
• An Interview Regarding AB 2273/the California Age-Appropriate Design Code (AADC)
• Op-Ed: The Plan to Blow Up the Internet, Ostensibly to Protect Kids Online (Regarding AB 2273)
• A Short Explainer of Why California’s Social Media Addiction Bill (AB 2408) Is Terrible
• A Short Explainer of How California’s Age-Appropriate Design Code Bill (AB2273) Would Break the Internet
• Is the California Legislature Addicted to Performative Election-Year Stunts That Threaten the Internet? (Comments on AB2408)
• Omegle Denied Section 230 Dismissal–AM v. Omegle
• Snapchat Isn’t Liable for a Teacher’s Sexual Predation–Doe v. Snap
• Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)
• Minnesota Wants to Ban Under-18s From User-Generated Content Services
• California’s Latest Effort To Keep Some Ads From Reaching Kids Is Misguided And Unconstitutional (Forbes Cross-Post)
• Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)
• Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230–Backpage v. McKenna
• MySpace Wins Another 47 USC 230 Case Over Sexual Assaults of Users–Doe II v. MySpace
• MySpace Gets 230 Win in Fifth Circuit–Doe v. MySpace
• Website Isn’t Liable When Users Lie About Their Ages–Doe v. SexSearch

The post How Often Do Consumers Balk at Doing Online Age Authentication? appeared first on Technology & Marketing Law Blog.

This case involves a terrible tragedy: genocidal violent attacks on the Rohingya minority in Myanmar at the beginning of the 2010s. The plaintiffs sued Facebook for its role in the attacks, such as its alleged algorithmic turbocharging of rage content posted by its users.

Despite the tragedy, the facts sound like a straightforward Section 230 situation. However, the lower court didn’t rely on Section 230 to dismiss the complaint. Indeed, Section 230 isn’t mentioned a single time in the district court dismissal, part of why I never blogged that opinion. Instead, the district court dismissed the case solely on statute of limitations grounds (“the Court determines plaintiffs’ claims, having been brought in 2021, were filed outside the applicable two-year statute of limitations”) without mentioning Section 230 even once. The panel acknowledges that this case did not present itself to the Ninth Circuit as a Section 230 case: “Because the district court dismissed Plaintiffs’ claims as untimely, it did not reach the Section 230 issue.”

Given that Section 230 is nowhere to be found in the lower court opinion, the Ninth Circuit could have affirmed the lower court on statute of limitations grounds. Or, if it disagreed with that ruling, it could have reversed the lower court’s ruling and remanded the case to the lower court to evaluate other aspects of the case, such as Section 230.

This panel did neither. The Ninth Circuit panel’s opinion doesn’t engage with the statute of limitations issue at all, i.e., it doesn’t indicate if the lower court was right or wrong on that topic. Instead, the Ninth Circuit panel requested the parties file supplemental briefings on Section 230 grounds (remember, the plaintiffs couldn’t initially appeal on Section 230 grounds because the lower court didn’t mention Section 230 at all) and then conducted its own de novo application of Section 230 without any guidance at all from the lower court.

In other words, the Ninth Circuit panel didn’t have to discuss Section 230. IT WENT OUT OF ITS WAY TO DO SO. The panel then raised Section 230 on its own initiative and then criticized Section 230’s application as a problem–even though Section 230 didn’t dictate the outcome at the lower court. The panel’s issue-seeking is a blazing red flag of judicial activism.

(Also, the panel opinion isn’t very transparent about why it chose to discuss only Section 230 and entirely ignore the lower court’s statute of limitations ruling. It treats Section 230 as a critical-path item without disclosing that the panel went off-road to address it. The panel disingenuously says “Meta renews its Section 230 arguments on appeal,” which is because the Ninth Circuit requested supplemental briefings on 230).

* * *

The plaintiffs argued that Myanmar law, which doesn’t contain Section 230 immunity, should govern instead of US law. The panel rejects this argument:

The United States’ interest in applying Section 230 is clear. Imposing liability on Meta for its actions as a publisher would frustrate Section 230’s purpose of “promot[ing] the continued development of the Internet and other interactive computer services.”…

Myanmar’s interest in protecting its citizens from harmful attacks and misinformation on Facebook, while real, is insufficiently incorporated into the positive law of the country. Myanmar’s interest therefore does not predominate. For these reasons, even if we could or should consider Myanmar law, Section 230 applies

I am not a conflicts-of-laws expert, so I don’t know if the court’s methodology or conclusion is unusual. The fact that Section 230 protects a U.S. company being sued in the U.S. seems intuitive to me, even if the plaintiffs are foreigners and the offline harms took place in a foreign country. For more on Section 230’s extraterritorial application, see Prof. Chander’s paper.

In his self-concurrence (discussed further below), Judge Nelson says this part of the panel opinion (which he wrote) wasn’t necessary because Section 230 is a federal law, so it preempts any of California’s choice-of-law provisions. He has nine citations to the Federalist papers in this section, so he’s still living in the eighties (the 1780s).

* * *

The panel says that Section 230 applies to the plaintiffs’ claims, despite the plaintiffs’ invocation of the standard workaround arguments.

The panel says:

Plaintiffs characterize Meta’s duty as one of product design—that Meta should not have built Facebook in a way that boosted incitements to violence. Still, the alleged defects relate to Facebook’s core design as a publishing platform, particularly how Facebook promoted or downplayed third-party posts using algorithms. Under our case law, matching users with content is publishing conduct, even when the user has not requested the content. [cites to Doe v. Grindr, Dyroff, Carafano, Barnes]

This is a powerful statement: “matching users with content is publishing conduct.” This reinforces that Section 230 should not just apply to the substance of third-party content, but it should also apply to decisions about how to present that third-party content. It reminds us that “product design” choices by speech venues are synonymous with editorial decision-making, so “product design” claims against speech venues should implicate Section 230.

The plaintiffs tried several arguments to advance its design defects theories:

• “Meta did not do enough to screen and moderate content” => “Asking a platform
  to monitor and review third-party content goes to Section 230’s core.”
• Trying to fit into Doe v. Twitter’s “reporting infrastructure” exception, the plaintiffs highlighted that Facebook lacked a reporting function in the native language. =>  “Plaintiffs mentioned the alleged English-language reporting issues only once in their opening brief. Plaintiffs did not discuss the effect of Section 230 on their reporting infrastructure theory in their reply brief. Plaintiffs have forfeited any argument about their reporting infrastructure theory.”
• “Facebook’s promotion of posts is inextricably (even circularly) linked to the “social rewards” reflecting third-party engagement.” => “The encouragement provided by social rewards ultimately depends on third-party engagement and content. This dynamic is true even though Plaintiffs try to frame the issue as a matter of product design….Calling Facebook a “product” rather than a publication platform only obscures the point that Meta “published user-generated speech that was harmful” to Plaintiffs.”

A reminder: just because a service adopts a term with potential legal significance like “product” doesn’t mean the service has made an admission against its interest. See the Prager U v. YouTube case and its discussion of “public forum.”

The plaintiffs also tried the Anderson v. TikTok argument, i.e., the algorithm is Facebook’s first-party content. The court responds: “Facebook’s promotion of engagement-driven content through the 2009 recommendation algorithm must be characterized as recommending and matching conduct. We have already decided that such conduct is the work of publishers, rather than a platform’s own content or messaging.”

The panel also discusses the Roommates.com exceptions, saying:

The system of social rewards that Plaintiffs complain of is, “on [its] face, neutral.” There is no plausible allegation in the complaint that the Facebook algorithm specifically treated anti-Rohingya content differently than any other third-party content. What’s more, nothing in the complaint plausibly alleges that Meta singled out or selected violence-prone users to post violent content….

Even if the Facebook algorithm and system of third-party feedback and “social rewards” encouraged the posting of content, nothing about the platform’s design contributed to what made those posts illegal or actionable….

the algorithm does not change our calculus or count as a material contribution.

The plaintiffs also tried the decades-old argument that 230 only protects publishers, not distributors. Citing Calise, the panel replies:

This is a distinction without a difference. We have expanded Section 230 and “discarded the longstanding distinction between ‘publisher’ liability and ‘distributor’ liability” that existed at common law.

The panel concludes:

Meta created Facebook, an interactive computer service. That service recommended content to users to maximize engagement. Under our precedent, that is publishing conduct that does not materially contribute to or develop the underlying content.

Plaintiffs believe that Facebook’s design, coupled with the darker elements of human nature, caused real-world harm. But Section 230, as we have interpreted it, bars their claims, and we cannot hold Meta “responsible for the unfortunate realities of human nature.”

* * *

If the panel stopped there, the panel opinion would be what I consider to be a fairly straight-down-the-middle Section 230 opinion. The plaintiffs generally tried routine “product design” and “but the algorithms” arguments, which the Ninth Circuit has repeatedly rejected and rejects again. The case involves tragic facts, but the requested redress is outside the law’s boundaries. The ruling also casts significant doubt on the social media addiction rulings regarding Section 230 in several ways.

However…at the end of the panel opinion, the judges don’t stop talking. All three judges express support for en banc review of Section 230.

Judges Berzon and Fletcher’s Concurrence

This concurrence starts by saying that this ruling is a textbook Section 230 case:

We are bound by Ninth Circuit precedent addressing the scope of section 230 immunity, which requires the conclusion we reach here: The plaintiffs claims’ challenging Facebook’s algorithmic design seek to treat Meta “as the publisher or speaker of any information provided by another information content provider,” so section 230 provides Meta with immunity

However, these judges think there should be an algorithmic exception to Section 230:

I nevertheless continue to think that this Court’s precedent has unduly expanded the scope of section 230 immunity. For the reasons persuasively outlined by Judge Katzmann in his partial dissent in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), cert. denied, 140 S. Ct. 2761 (2020), and as I stated in my concurrence in Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021), vacated, 598 U.S. 617 (2023), “if not bound by Circuit precedent I would hold that the term ‘publisher’ under section 230 reaches only traditional activities of publication and distribution—such as deciding whether to publish, withdraw, or alter content—and does not include activities that promote or recommend content or connect content users to each other

The logic flaw ought to be obvious: Judge Berzon believes the “traditional activities of publication and distribution…does not include activities that promote or recommend content or connect content users to each other.” But promoting and recommending content is one of the most central publication functions. Every publication decision is an act of prioritization–it elevates some content for greater attention over all other content that isn’t published. Further, book publishers don’t just publish books and then store them in a warehouse; they go out and promote the availability of the books so people will actually buy and read them.

Further, where Judge Berzon denigrates “connecting content users to each other,” she is using an unilluminating euphemism. Users aren’t just being “connected” to each other for shits and giggles. The connections facilitate the users talking to each other, i.e., AUTHORING AND DISSEMINATING CONTENT to each other. The speech venue’s role in making those connections–so people can communicate their content to each other–is a quintessential act of publishing content. Judge Berzon wants to kick out various activities from Section 230 by using an unnecessarily constricted and misguided definition of what she thinks constitutes “traditional activities of publication and distribution.”

This concurrence keeps digging. It embraces the logic defect that plagued the Anderson v. TikTok court: that Moody v. NetChoice (an opinion that didn’t discuss Section 230 at all) held that “an online platform’s decisions about how to order, organize, or display third-party content are the platform’s ‘expressive choices'” which, in turn, curtails Section 230. Thus:

Moody and Anderson persuasively suggest that algorithmic recommendations are an internet service provider’s first-party speech for purposes of assessing section 230 immunity

This concurrence says Section 230 doesn’t depend on how the algorithm is constructed:

generic, content-based algorithms do not bear any more resemblance to traditional publication than their “advanced”—individualized—counterparts….Whether generated by an “advanced,” “personalized recommendation” algorithm, an “engagement-maximizing” algorithm, or by hand, I understand suggestions and recommendations to be distinct messages presented by social media companies. Those messages cannot be attributed to any third parties and so are not protected by section 230.

I lament again how often people undervalue the curation function of publishers. The decision to publish or reject any individual item of content is obviously a curation function. It is similarly a curation decision to highlight some content items over others. Any efforts to distinguish between the two would inevitably shrink Section 230 down to, at most, an immunity for content hosting, i.e., Dropbox or Google Drive file hosting services. That was never Section 230’s intent, even in the simpler days of 1996. Moody v. NetChoice, which didn’t mention Section 230, did absolutely nothing to change the contours of Section 230.

These concurring judges summarize their position:

Whether soliciting scam advertisements or matching adults with minors on dating apps, this Court’s broad reading of section 230 of the Communications Decency Act permits internet service providers affirmatively to behave indecently, potentially—as alleged in Dryoff [sic] and Grindr—causing serious harm to vulnerable people. In my view, the conduct challenged in these cases stretches far beyond the traditional activities of publication contemplated by section 230

What does it mean for a publisher to “behave indecently”? I have no idea.

These judges conclude with a call for en banc hearing and maybe Supreme Court review:

there is now both an intercircuit conflict and strong tension with a recent Supreme Court case. Moody v. NetChoice and Anderson only underscore the necessity for en banc review of this Court’s precedent addressing section 230. I again—even more emphatically on this go round—urge this Court to reconsider en banc our precedent extending section 230 immunity to recommendation of content and connections to users

I still cannot wrap my head around how anyone agrees with the Anderson v. TikTok decision.

Judge Nelson’s Self-Concurrence

Judge Nelson writes yet another self-concurrence to a panel opinion he also wrote. This is not his first self-concurrence; and self-concurrences have become a bit of a status symbol/fetish among TAFS judges. I assume they think it signals that they are by-the-books adhering to the precedent in the main opinion but would have reached a different conclusion if they weren’t so restrained.

With respect to Section 230, he says “we have overread Section 230, straying from the original public meaning of the statutory text and creating an all-purpose liability shield for internet platforms.” (As I have repeatedly pointed out, Section 230 isn’t an “all-purpose liability shield”). For example:

how does a product liability claim hinge on treating the provider of an interactive computer service as the publisher of third-party content?…Even if a product liability claim might look like publishing third-party content from afar, the duty underlying such a claim is not “identical to publishing or speaking.”

I have no idea what Judge Nelson is talking about. Take, for example, publishing a field guide to mushrooms that misidentifies a poisonous mushroom as safe to eat. If the victim brings a products liability claim over the book’s mischaracterization, how is that claim not “identical” to imposing liability for publishing? What tendentious distinctions about the mechanics of publishing is Judge Nelson trying to make?

Judge Nelson also speculates that the products liability claims “likely fail” under California law because he is “skeptical” that Facebook is a “product.” First, it’s improper to speak specifically about this claim when it could possibly come back to the Ninth Circuit in this very case depending on how the case proceeds. Even worse, the claim wasn’t properly briefed for the Ninth Circuit by the parties.

Second, if he’s right that the claim should fail on its lack of merits, what exactly is the point of trying to fight to preserve the claim? The Ninth Circuit has already done a dozen of these “it’s not 230, but you still lose” switcheroos to plaintiffs, and yet it has not learned anything from that ever-growing process of wasted motion and futility. Judge Neslon says “we need not stretch Section 230 to reject” the products liability claims. In my view, his argument would instead nonsensically stretch Section 230 to preserve what he believes are futile products liability claims.

Judge Nelson also buys into the “but the algorithms” view: “Section 230’s protection of third-party publishing conduct should reach only “traditional” activities of publication and distribution—not every modern activity that bears some remote resemblance to it.” Except that because judges routinely undercount the curatorial functions of publishers, they are actually misperceiving the “traditional” activities of publishers.

To emphasize that Judge Nelson doesn’t understand what publishing means, he says:

Modern recommendation algorithms are opaque, esoteric, and—particularly when artificial intelligence enters the fray—incomprehensible, sometimes even to their own designers. Much of the matchmaking and network creation that modern algorithms engage in does not fit within any fair definition of publishing conduct

If an entity is gathering, organizing, and disseminating content, it is a publisher. Judge Nelson seems to think they are “qualifying” and “disqualifying” ways of organizing and disseminating content. It’s true that we’re now longer in the world of typesetting and ink-driven printing that prevailed during the writing of our Constitution. But the curatorial functions are indistinguishable. Surely Colonial printers would have enthusiastically used automated options if they had been available.

Judge Nelson also apparently agrees with the Anderson v. TikTok approach: “even if algorithms are publishing conduct, the Supreme Court has suggested that they are the publishing of the platforms’ own content…If an algorithm is a distinctive expressive product, then it makes sense that it is a platform’s own content, rather than the content of third parties…. it is unclear why algorithms should be immunized under Section 230 after Moody.” This is so confused. Curating third-party content is called “publishing,” and the curatorial choices don’t change the status of the third-party content as third-party content.

* * *

By not addressing the statute of limitations question at all, the panel leaves open an obvious problem. Assume the Ninth Circuit wipes Section 230 off the books entirely, for this case and all others. The case still lost on statute of limitations grounds, and the Ninth Circuit has never said that was incorrect. As a result, resolving Section 230’s applicability does nothing to resolve this case. The case remains dismissed on statute of limitations grounds until a court of greater authority says otherwise. That makes the panel’s engagement with Section 230 feel gratuitous. The concurrences are like advisory opinions to address some counterfactual hypothetical.

Thus, it was conspicuous how little Judge Berzon and Judge Nelson’s concurrences engaged with the facts of the Rohingya claims–or explain why this case doesn’t actually illustrate the problems they want to discuss. (Judge Nelson addresses this some–he thinks old Facebook algorithms aren’t the right test case for this pet theories). In most respects, the concerns in their concurrences are divorced completely from the case at hand. The case instead became a vehicle for venting their nonbinding views.

As you can imagine, the plaintiffs have already requested en banc review of this case. If the Ninth Circuit takes the case, it will set up a potentially existential battle over what it means to “publish” content, the role and value of publisher curation, and how a Supreme Court pro-free speech opinion that had nothing to do with Section 230 might nevertheless curtail online speech. Expect some turbulent jurisprudential times ahead.

Case Citation: Doe 1 v. Meta Platforms Inc., 2026 WL 1144707 (9th Cir. April 28, 2026)

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In a prior ruling, the court upheld Twitter’s TOS and sent the case from D. Conn. to N.D. Tex. In my prior post, I wrote: “The relocation of the case from Connecticut to N.D. Tex. only delays the inevitable. This case is doomed due to Section 230, among other reasons.” That denouement has now arrived. The court says simply: “§ 230 clearly bars Taddeo-Waite’s claims against X.”

Decision Not to Remove Third-Party Post. “Taddeo-Waite’s claims concerning X’s decision not to remove the anonymous user’s post neatly fall into the scope of § 230 immunity….X’s decision not to remove the anonymous user’s post treat X as the publisher of another’s information.”

Algorithmic Amplification of Third-Party Post (“But the Algorithms”). “§ 230 immunizes X from suit over its decision not to delete another’s post, and whether Taddeo-Waite notified X of the post’s harmful nature is immaterial to X’s § 230 immunity for that conduct.”

Taddeo-Waite highlighted the algorithmic amplification of the third-party post. No matter, same outcome:

Taddeo-Waite contends that X’s application of its algorithm to the anonymous user’s post constitutes the kind of material contribution to that post that can render X a developer and thus an information content provider…these arguments miss that no matter what amplification Taddeo-Waite alleges, this alleged activity has no bearing on the content of the anonymous user’s post…

Taddeo-Waite does not state facts showing how X’s alleged algorithmic amplification of the anonymous user’s post encouraged or contributed to the post’s message. Instead, he only alleges that X broadcast that message once the user had already composed and uploaded it….courts have consistently found that § 230 immunizes web-based defendants from claims that allege harms caused by content recommendation algorithms…

Taddeo-Waite’s claims that derive from X’s algorithmic amplification of a post merely accuse X of exercising the same editorial judgment a publication wields when it decides which writers’ articles to print on the front page and which to print on the back…

X’s algorithm’s role in establishing that reach does not, without more, state a claim against X that can overcome § 230 immunity

As you can see, this judge completely rejects the algorithmic exceptionalism underlying “but the algorithms” arguments. It shouldn’t matter if editorial decision-making is done manually by humans or if humans encode those values into the machines.

X’s Alleged Suppression of His Posts. Taddeo-Waite complained that his posts weren’t getting his desired visibility even though he was a paid X subscriber. Thus, he frames the claim as a contract breach claim. This doesn’t move the court: “it is immaterial that the duty here was contractual in nature. Section 230 does not provide any immunity exception for breach of contract claims.” While I agree with this statement, the Ninth Circuit’s Calise and YOLO cases plainly reach contrary conclusions. This is another example of lower courts deviating from the Ninth Circuit’s 230/promises absolutism.

Having sidestepped the 230-contract interplay, the rest of the case goes quickly:

courts in the Ninth Circuit have routinely held that the plain text of § 230(c)(1) does not foreclose immunity for claims premised on information the plaintiff himself provides…

The approach that courts in the Ninth Circuit have used is persuasive here….the operative question is whether X, the interactive computer service, provided the information at the heart of Taddeo-Waite’s suppression claims. It did not. Until he terminated his account, Taddeo-Waite was an X user and an X poster, and the posts whose suppression he sues over were his own. Because Taddeo-Waite’s claims concerning X’s post suppression concern information provided by “another information content provider,” and because X meets the other two elements of § 230 immunity, X is immune from these claims.

It is mind-blowing to see a Texas court expressly saying it found the Ninth Circuit persuasive. I thought it was a point of immutable Texan independence to knee-jerk reject everything California does, regardless of merit.

In the end, this claim becomes a routine account termination/content removal claim, and it fails like the many dozens preceding it.

Also, I don’t mean to be callous, but I have little sympathy for anyone who subscribed to Twitter’s premium services post-Musk. If you’re paying for greater status in Musk’s petri dish of racism and authoritarianism, I lean towards Team Caveat Emptor. You get what you get and shouldn’t get upset.

(I miss Twitter of old, but I don’t regret not participating in Musk’s X. Find me on Bluesky).

Case Citation: Taddeo-Waite v. X Corp., 2026 WL 1391897 (N.D. Tex. April 23, 2026). This is a report and recommendation by Magistrate Judge Ray, so it’s pending before supervising Judge O’Connor.

Taddeo-Waite is proceeding pro se. He’s a Democratic candidate for Congress, though I wonder about his odds of success.

The post Section 230 Ends Lawsuit by Twitter Premium Subscriber–Taddeo-Waite v. X appeared first on Technology & Marketing Law Blog.

The transcript is a chapter in a remarkable new book entitled “Trust, Safety, and the Internet We Share: Multistakeholder Insights.” The ebook is open access, or you can buy a physical copy. I encourage you to check out the entire book. It has lots of great and unique content. You’ll see that I also contributed to a chapter about the Journal of Online Trust & Safety.

Note that the conversation transcript published in the book chapter is a little shorter than the one I posted to SSRN. The book imposed a tight word count budget, so we had to cut some parts of what I considered the golden master version of the transcript. The main substance is the same in both versions, but the book chapter shed some personality. The SSRN posting is the golden master version, like a director’s cut, so I prefer it!

Some Related Entries

* A Pre-History of the Trust & Safety Professional Association (TSPA)

* “IAPP Content Moderation in 2019” Conference Recap

* Roundup of February’s ‘COMO at Scale Brussels’ Event

* Announcing COMO Brussels, the Fourth Edition of the “Content Moderation at Scale” Conference Series, Feb. 5

* COMO: Content Moderation at Scale Conference Recap

* Roundup of Materials from HTLI’s Content Moderation & Removal Conference

* Conference Announcement: “Content Moderation & Removal at Scale,” SCU, Feb. 2

The post New Book Chapter Tells the TSPA and TSF Origin Stories appeared first on Technology & Marketing Law Blog.

YOLO stopped paying its lawyers and stopped fighting in court, so it defaulted in the case. That makes me wonder who can pay off any judgments against YOLO if YOLO is already gone?

Either way, the plaintiffs are proceeding without any opposition from YOLO. And yet…their case is so unmeritorious that the plaintiffs can’t get an unopposed default judgment. Obviously defective cases are what the Ninth Circuit thought was worth wrecking Section 230 to preserve…?

In the past 2 months, the district court has twice rejected a default judgment:

Bride v. Snap, Inc., 2026 WL 855148 (C.D. Cal. March 16, 2026)

In the March ruling, the court rejects class certification. The court flags numerous problems with class formation:

• if the defendant has defaulted, can a class claim really be adjudicated properly?;
• The class claims 26M users, but the plaintiffs based the numbers partially on vibes;
• the class includes non-bullied users and, remarkably, the alleged bullies;
• the named plaintiff’s suicide-based claim materially differs from other claims of bullying;
• the plaintiff lawyers’ interest in the case seems to be waning (maybe because YOLO is judgment-proof?);
• “What is “bullying” in this context? What are “harassing messages,” “objectionable content,” and “inappropriate usage”? Who are “abusive users”? How severe or frequent does a user’s conduct have to be for Yolo to be required to take action?”; and more.

Substantively, the court questions the claims’ merits:

here are Yolo’s statements that Plaintiffs challenge in this case as fraudulent misrepresentations:

• “YOLO is for positive feedback only. No bullying. If you send harassing messages to our users, your identity will be revealed.”

• “YOLO has no tolerance for objectionable content or abusive users. You’ll be banned for any inappropriate usage.”

• “Be kind, respectful, show compassion with other users, otherwise you will be banned.”

The court is hard pressed to conclude that the TAC adequately alleges that, as to element one, those statements were plausibly false promises to future bullying victims (as opposed to threats to bullies); that, as to element two, Yolo knew that by making these statements it was making false promises to future victims; as to element three, that Yolo intended to induce reliance from future victims that Yolo would take affirmative action if bullying, harassment, inappropriate usage, unkind, disrespectful, or noncompassionate behavior occurred; or, as to element four, that that any reliance Plaintiffs exhibited on these statements as promises that Yolo would take such action was justified.

The court adds: “there is a serious question regarding whether the statements challenged as misrepresentations are puffery.” Yes, claims about on-site safety are often puffery. All of this was obvious from the face of the complaint.

In other words, the district court is flummoxed by the aftermath of the venerable Ninth Circuit Section 230 switcheroo. The Ninth Circuit negated Section 230 for promise-based claims, but the “promises” here were never actually promises and thus could never form the proper basis of a claim. Thus, reviving the case gave false hope to the plaintiffs. The Ninth Circuit has made similar 230 switcheroos at least a dozen times, each time benefiting no one.

The court continues:

Yolo’s First Amendment defense also comes into play here. “Content moderation by social media platforms is generally considered expressive activity and is protected under the First Amendment.”…Consider, for example, a scenario in which this case had proceeded through discovery and Yolo contended that it reviewed some of the messages at issue and had determined that, for whatever reason, those messages did not violate Yolo’s community standards such that they should be taken down. The court’s review of that decision could implicate the First Amendment.

I have raised the same First Amendment concerns for many other cases against social media, including the social media addiction cases.

The court bottom-lines it:

at this stage of the proceedings, Plaintiffs have presented insufficient legal authority and evidence for the court to find it is appropriate to exercise its discretion to grant the relief Plaintiffs seek.

Bride v. Snap Inc., 2026 U.S. Dist. LEXIS 104978 (C.D. Cal. May 11, 2026)

Following the March ruling, the plaintiffs tried to address the judge’s concerns and sought class certification and summary judgment a second time. Their motion remains unopposed, yet it strikes out a second time.

Class Formation: Typicality

“The new class definition still includes people who were not bullied and the bullies themselves, and Plaintiffs are not typical of these groups or adequate to represent them.”

Also, “the court is concerned is that Ms. Bride would be so preoccupied with a wrongful death claim that she believes she (and she alone) has and its significant associated damages that she would give short shrift to her role, or be distracted in her role, as class representative on the class’s claims for misrepresentation and violation of state consumer protection statutes.”

Class Formation: Commonality/Predominance

Plaintiffs allege Yolo made misrepresentations including, “No bullying. If you send harassing messages to our users, your identity will be revealed,”  and “YOLO has no tolerance for objectionable content or abusive users. You’ll be banned for any inappropriate usage.” But for these statements to be false, a trier of fact would have to consider a host of questions regarding each individual situation: what is “bullying”? What are “harassing messages,” “objectionable content,” and “inappropriate usage”? Who are “abusive users”? How severe or frequent does a user’s conduct have to be for Yolo to be required to take action? These individualized issues go to the heart of Plaintiffs’ misrepresentation claims….

unlike statements like “this moisturizer is oil-free,” or “this supplement promotes healthy joints in dogs,” Yolo’s alleged misrepresentations add a critical predicate clause—one that indicates the representation will be true only in certain circumstances. In other words, “we will ban you” or “we will reveal your identity” might be sufficiently analogous to “this moisturizer is oil-free”; what sets this case apart from a case where a reliance inference might be appropriate is the portion of Yolo’s representations that tells users when (and only when) Yolo’s promises will be true. Those clauses—such as “if you send harassing messages”; “for any inappropriate usage”; and if you are not “kind, respectful” or do not “show compassion with other users”—involve individualized issues that make the reliance inference Plaintiffs seek inappropriate.

The court seems to be saying that if a marketing representation says “if you do X actions, you will get Y result,” it will hinder class formation because the examination of whether an individual plaintiff did the predicate X actions would require individualized determinations.

No Substantive Merit

The “what is not allowed”-type statements in this case are “YOLO has no tolerance for objectionable content or abusive users,” “YOLO is for positive feedback only. No bullying,” and “[b]e kind, respectful, show compassion with other users.” These “statements of policy” that “simply describe what content is allowed on” YOLO cannot “be considered ‘false’ for purposes of Plaintiffs’ claims.” [cite to Bogard v. TikTok]

The “we remove” statements in this case are “[y]ou’ll be banned for any inappropriate usage,” “[i]f you send harassing messages to our users, your identity will be revealed,” and “otherwise you will be banned.” Plaintiffs’ argument that these statements are actionable because they say exactly what Yolo will do is only half the picture—Yolo said they would do those things when something else happened. Here, like Bogard, the vagueness of the critical threshold criteria renders the alleged misrepresentations too vague to be enforced. The Bogard court commented that “[i]t is difficult to imagine standards more subjective than ‘meaningful’ and ‘accurate enough.'” In the court’s view, “inappropriate usage,” “harassing messages,” “bullying,” and being not “kind, respectful, [or] show[ing] compassion with other users,” are equally subjective….

in each of the alleged misrepresentations, it is clear that Yolo is speaking directly to bullies, telling them that if they engage in certain disapproved behavior, “your identity will be revealed” or “you will be banned.” There is no indication that Yolo is speaking to, or making any representation to, anyone else, including the victims of any bullying, harassment, or unkind, disrespectful, or noncompassionate messages. The court finds insufficient factual allegations supporting the notion that Yolo meant for their threats to bullies—made speaking directly to bullies in the “you” voice—to be taken by victims as enforceable promises that they, people to whom Yolo was not speaking, could rely on….

Finally, the court finds insufficiently plausible Plaintiffs’ allegation that Plaintiffs’ reliance on Yolo’s statements—by using the app believing Yolo would protect them on it—was justifiable.

This time, the district court dismisses the case, so it’s now appealable to the Ninth Circuit–where, presumably, the plaintiffs’ filings will remain unopposed by the nonexistent YOLO. Will the plaintiffs appeal? I presume yes. Will the Ninth Circuit recognize how its bad prior ruling exacerbated this mess?

This case involves many tragedies, including the litigation itself. This lawsuit never should have been brought, and it should not have been revived on appeal. It shows the revictimization inherent in the Ninth Circuit 230 switcheroo. It set up the victims to waste extra time, money, and emotional energy to reach the always inevitable conclusion that this particular lawsuit isn’t the proper way to redress the victims’ harms.

The post The YOLO Remand Shows Why the 9th Circuit Should Stop Carving Up Section 230–Bride v. Snap appeared first on Technology & Marketing Law Blog.

an anonymous social media account and online “persona” known as Rain Drops Media (“Rain Drops”) published a defamatory video falsely suggesting that Eizenga was an abusive partner who battered Monroe Capri Bryant (“Bryant”), a young social media influencer. The video in question consists of a collage of other social media posts and clips from Bryant’s live-stream featuring Plaintiff and Bryant together along with a caption that reads, “Woman was punched and assaulted by her boyfriend, she claims he still loves her and insists they’re ‘good’ . . . .” In the video, one of Bryant’s eyes is severely bruised, and Plaintiff can be seen attempting to kiss Bryant on the temple. The video has been viewed roughly four million times on the social media platform X…

WorldStar reposted Rain Drops’ video to its social media accounts (including
Facebook, Instagram, and worldstarhiphop.com) with a slightly modified caption that now read: “CYCLE OF ABUSE: Woman With A Black Eye Goes Live With Boyfriend Who Allegedly Punched Her, Insisting ‘He Loves Me’ And ‘We’re Good’ As He Kisses Her On Camera.” WorldStar also “tagged” the video with three identifiers: (1) “domestic violence,” (2) “Relationships,” and (3) “TikTok.” Plaintiff does not allege that Defendant created or otherwise altered Rain Drops’ video.

WorldStarHipHop defeats the lawsuit per Section 230.

ICS Provider. The court summarizes the general rule: “websites that allow third-party users to submit or upload content are providers of internet computer services.” WorldStarHipHop qualifes:

Plaintiff does not allege that Defendant independently generates any content whatsoever. Rather, Plaintiff alleges that Defendant merely reposted the challenged content without editing the video itself

The court seems to be conflating this factor with the other two. Plus, if WorldStarHipHop is posting to third-party social media like Facebook and Instagram, it might be more accurately characterized as an ICS user, not provider.

Publisher/Speaker Claim. Plaintiff conceded this.

Third-Party Content. The court quickly jumps to the Roommates.com exceptions. It defines the rule as “a website operator may be held liable for third-party content where (1) it “substantively alters” the content and where (2) the substantive alteration is “directly involved in the alleged illegality.”” The court continues:

The bar for “substantive alteration” is high. To start, the test requires something above and beyond the “exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.” Nor is it enough for a plaintiff to allege that a defendant promoted content through the use or creation of algorithms, tags, video thumbnails, summaries, posts, or animations.

WorldStarHipHop doesn’t meet these standards:

Plaintiff alleges that Defendant made just three changes to Rain Drops’ original video: (1) adding “CYCLE OF ABUSE” to the caption, (2) adding “allegedly” to the caption, and (3) tagging the video with a “domestic abuse” identifier. Those minor changes—none of which altered the video itself—fall far short of the allegations required to make out substantive alteration. [cite to Doe v. Fenix and L.H. v. Marriott.]…The minor, paratextual modifications at issue here fall far short of the more substantial alterations courts found wanting in Fenix Int’l and L.H….

Defendant created nothing. It reposted a preexisting video and adopted a preexisting caption almost word-for-word. The addition of the leading phrase “CYCLE OF ABUSE” and the “domestic violence” tag at most “augment” or “develop[] by inference” the alleged illegality already at issue in the original video.

The court distinguishes the problematic Doe #1 v. MG Freesites ruling, saying that the MG Freesites court excluded CSAM from the definition of “information” (an obviously wrong conclusion); plus “the allegations at play in MG Freesites were much more favorable to the plaintiff than what’s on display here. At most, Plaintiff has alleged that Defendant added the “domestic violence” tag to Rain Drops’ video, but none of the other types of allegations from MG Freesites are present here.”

* * *

I don’t think all courts would treat the WorldStarHipHop-added headline and tags as third-party content. This is a highly confused area of Section 230 jurisprudence. A court could have said that the headline and tags weren’t an integral part of the video (they are metadata) and thus don’t necessarily need the same legal treatment as the video. A court also could say that even small semantic differences between the original headline and video tags and WorldStarHipHop’s headline and tags create new meaning added by WorldStarHipHop.

Also, it’s weird that the court appears to gloss over WorldStarHipHop’s download-and-reupload of the Rain Drop’s video. (The court never says that WorldStarHipHop only links to or embeds the third-party video; that might change the case’s complexion substantially). I have repeatedly blogged about Section 230’s ambiguities from treating downloaded-and-reuploaded content as “information provided by another information content provider.” (See, e.g., the D’Alonzo case 20 years ago). In light of Section 230’s downward trendlines, it’s a little jarring to see the court discuss WorldStarHipHop taking all of these actions itself and still concluding that everything remained third-party content.

(WorldStarHipHop would also raise copyright concerns with an download/reupload, but this plaintiff would not be the right enforcer of that issue).

Case Citation: Eizenga v. MediaLab.Ai Inc., 2026 U.S. Dist. LEXIS 103543 (May 11, 2026). Also of interest: my 2012 post on Scott v. WorldStarHipHop.

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