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.

On March 9, 2026, Judge Chesney granted a preliminary injunction in the case of Amazon v. Perplexity, concluding Amazon was likely to succeed on its CFAA and California Penal Code section 502 theories.

If you’re familiar with the CFAA, the outcome of the preliminary injunction opinion was what you might expect.

But it is underwhelming in some new and interesting ways. It is, in my opinion, a shockingly poor effort to grapple with CFAA applicability to agentic AI technology after Van Buren.

If you’re unfamiliar, agentic AI is simply the name for AI that actually does work for you instead of answering questions. An agent can take a loose goal, break it into steps, use tools, gather information, make decisions, and come back with the task done. That makes it useful for the work people hate but still need judgment to finish, such as research, product comparisons, customer support, and multi-step coordination.

One valuable use case for agentic AI is shopping. Not only can Agentic AI tell you what the highest rated toaster on Amazon is for under $100, it can actually buy it for you.

You can tell agentic AI:

Buy a toaster on Amazon for under $100. Prioritize name brands, Amazon Prime shipping, and wide slots for bagels. Do not buy based solely on Amazon rating. Consider only models with at least 1,000 reviews, a rating of 4.7 or higher, and no obvious fake-review pattern. Cross-check at least two independent review sources or testing sites for confirmation that the quality is among the best at this price point. Choose a 2-slice toaster unless a 4-slice model is clearly better.

If one option is clearly superior under these criteria, add it to my cart and proceed to purchase. If not, add the best by these measures and I will review and purchase.

The thing about instructions like these is that they totally kill many of the ways online e-commerce sites make money. Amazon doesn’t just make money from selling you stuff and sending it to you. They also make money from product placement, ads, upselling, and a million other ways of nudging you into buying more stuff.

Amazon wants their search bar to be the way that you buy things online. But if the interface for your shopping becomes the AI labs’ platforms, that’s a big deal for e-commerce sites. It’s an existential threat to some e-commerce platforms and a major margins headwind for giants like Amazon and Walmart.

Those are the stakes.

* * *

The injunction in this case arose from Amazon’s challenge to Perplexity’s Comet browser and shopping agent. Perplexity built a tool that allows software to shop for users on Amazon through their logged-in accounts. Amazon sent a cease-and-desist letter. But Comet didn’t stop.

Created by ChatGPT Dec. 2025

The court focused on a familiar question for CFAA folks, which is that Amazon allegedly revoked authorization, Perplexity’s agents continued accessing Amazon’s systems through user accounts, and therefore Amazon was likely to succeed under theories derived from CFAA and California computer-access law.

From a pure CFAA perspective, the allegations were straightforward. Monopolist platform discovers a kind of automation that people who use the Internet enjoy, labels it “unauthorized,” cites to Power Ventures, points to investigative costs, and gets its injunction. It has happened before and it will happen again.

But the genuinely novel issue was totally ignored in the opinion. Perplexity’s Comet is an AI agent. And agentic AI is not merely collecting data. It is acting as the user’s delegated representative in an ongoing workflow.

The opinion makes zero effort to analyze:

• whether an AI agent should be treated like a browser,
• whether it should be treated like a human assistant using delegated credentials,
• whether agency-law concepts matter,
• whether user autonomy creates an independent authorization interest distinct from Power Ventures,
• whether there is a meaningful distinction between scraping data and performing user-directed actions.

Instead, the court seems to jump directly to the conclusion that Amazon retains ultimate authority to exclude the intermediary.

(In partial defense of the court, they hint that they may have discussed this at oral arguments. But there’s no analysis of agentic AI in the opinion itself).

From an agentic-AI perspective, it’s straightforward to ask:

If I can personally log into Amazon and buy a toaster, why can’t I save time and have software do it for me?

Because Power Ventures is dumb and Amazon says so, that’s why.

The Power Ventures framing has always allowed platforms to control their platforms, even when the user wants a certain tool to interact with them, if the integration includes a logged-in component. If there is a password at any part of the flow, most courts find that the CFAA can be used to crush any unwanted integration, no matter how benign or socially useful it is. Log-in plus cease-and-desist has almost always been a CFAA violation.

That’s why Power Ventures matters so much. If Power Ventures controls, Amazon gets to frame Comet as just another unwanted logged-in integration. If it doesn’t, the case becomes about whether users can delegate ordinary account activity to software.

That is also what makes this such an interesting test case for Power Ventures. Amazon wants to put Comet in the Power Ventures box, and legally, that is exactly where a plaintiff wants to be. But the factual analogy is imperfect. Power Ventures was not merely helping users operate Facebook. It built a competing service, collected Facebook users’ information, imported that information into its own platform, and used users’ networks to market itself. Comet’s better factual description is simpler, because the user is still shopping. The user just has delegated parts of the shopping flow to software.

If Power Ventures means that a platform can veto any third-party agent, then the CFAA becomes a platform-control statute for the agentic web. Maybe that is where the Ninth Circuit ultimately lands. But if that’s the case, the CFAA is going to be an increasingly unpopular law.

What’s especially disappointing is that courts continue to pretend that there are not difficult policy questions to consider with these new technologies. It is particularly true in this case, because it was a preliminary injunction proceeding, and the court was required to consider the broader public interest question. Perplexity argued that an injunction would disserve the public interest in consumer choice and innovation.

The court’s response was as thin and fragile as overcooked spaghetti. It said that the public has an interest in preventing unauthorized access to computers, and that was that.

The platform says it’s not allowed, therefore it’s not allowed, and it’s in the public’s interest for it not to be allowed.

See how easily we resolved issues with agentic AI?

Reasoning like this makes the CFAA one giant circle of enforcing platform preferences.

To be clear, there’s an argument for Amazon’s position, too. Platforms have real interests in account security, fraud prevention, bot detection, and knowing whether an automated system is moving through logged-in user accounts. But that’s only a small part of the story.

The anti-competitive implications here are super-obvious. Perplexity’s stated theory of the case is that Amazon does not like a user tool that routes around Amazon’s preferred shopping and advertising experience. AI agents “don’t have eyeballs” for the ads Amazon “bombards” users with. Even if you think that line is a bit cute, the underlying point is real. Intermediaries often threaten incumbents precisely because they reduce friction, reorder presentation, or weaken monetization levers the incumbent would rather preserve. Search engines did that. Price-comparison tools do that. Browser extensions do that. API clients and integrations do that. AI agents will absolutely do that in a way that the platforms are not yet prepared to deal with.

Stated plainly, the public interest section just isn’t serious here. A court need not become an antitrust tribunal every time someone says “innovation” or “consumer choice.” But this fact pattern is different from the fact pattern in Power Ventures. A court has a duty to at least think about that.

—

The other interesting part of this case is it’s another test of the definition of technological harm after Van Buren.

Knowing that the Power Ventures question was always going to be a tough climb, Perplexity also asked some of the other tough CFAA questions that Van Buren didn’t bother to answer. The order recognizes that Van Buren at least raises a question about whether “loss” should be limited to technological harms, and it notes the Ninth Circuit’s comment in hiQ about Van Buren requiring such harms. Then it basically shrugs and says, in substance, “this is going to be resolved in Amazon’s favor,” without any explanation or analysis of whether that’s the correct outcome.

To me, the technological harm question would be the easiest way to separate Power Ventures from benign or socially useful integrations. A few courts have agreed, but many do not.

And whether I like it or not, the Section 502 piece of the opinion is even more “chalk” than the CFAA ruling. California cases have long treated response and investigatory expenses as cognizable losses under Section 502. This also dates back to Power Ventures and beyond. So if defendants already face an uphill fight arguing that CFAA investigative costs must be tethered to technological harm notwithstanding Van Buren’s “technological harms” language, that argument is harder still under Section 502, where Van Buren is not controlling and the California text is friendlier to verification costs.

Regardless, it is hard to imagine that Power Ventures will survive agentic AI forever. Sooner or later, courts will be forced to acknowledge that people should be allowed to delegate to software tasks that they are legally allowed to do themselves, especially as software gets better and better at doing those tasks. But for now, Power Ventures stays intact. Until courts grapple with the power with what agentic AI actually does, the CFAA will remain what large platforms want it to be. Not just a law against hacking, but a legal cudgel against unwanted interoperability or user preferences.

The real task is for courts to acknowledge that platforms don’t need unchecked authority to kill all forms of automation on their platforms, but should instead distinguish malicious automation from disclosed, user-directed software that functions as the user’s chosen interface. I think we’ll get there eventually, but this opinion makes me think it’ll be some time before we do.

The post When Can Amazon Block an Agentic AI Service?–Amazon v. Perplexity (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

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.

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.

Clicking on the “View your Mention” button leads to this screen:

In both cases, the fact statement that X mentioned Y is presumably true, and it provides a sample of how the Mentions service works for its subscribers. At the same time, it does use X’s name in what looks like advertisements to convert Y to a paying customer. This reminded me of Facebook’s sponsored stories, which similarly relayed a true fact statement (X bought an item from Y) in what was converted into a paid advertisement.

Academia also targeted non-accountholders who visited a professor’s profile, showing them house ads:

The plaintiffs filed a class action lawsuit over California’s publicity rights. Academia tries to send the case to arbitration three different ways (or, arguably, four different ways). They all fail.

Arbitration Attempt #1: Disclosure about Google’s Privacy Practices

In 2015, Judge used Academia’s “find your friends” feature to import his social graph from Google. Google displayed the following screen in the process:

The disclosure language never mentions Academia’s TOU at all, so…

(Also, Academia is trying to impose the arbitration requirement in its TOU, but the disclosure only permits Academia “to use your information”).

Arbitration Attempt #2: 2022 Google Pop-Out

In 2022, Judge signed into Academia using Google’s login functionality. Academia doesn’t know exactly what that process looked like but this is its “best estimation”:

The disclosure says to “see” Academia’s TOS but doesn’t have an if/then grammar, so….

A reminder that if you’re trying to form the TOS and can’t provide highly credible evidence of what the TOS formation screen looked like, bonne chance.

Arbitration Attempt #3: Judge was a power user

Academia argues that Judge: (1) viewed its website (which contains a link to its Terms of Use) tens of thousands of times, 29 times scrolling to the footer with the Terms link and twice clicking buttons immediately next to that link; (2) twice viewed the website when it had banners announcing that the Terms had changed; (3) opened thousands of emails from Academia containing a link to the Terms, and three times clicked an adjacent link; and (4) viewed the login page in 2016, which contained a notice that “By clicking Sign Up, you agree to our Terms,” and then subsequently created a new account in 2022.

The court says the first three don’t indicate an unambiguous manifestation of assent. As for #4, the court says there’s no temporal coupling (viewed disclosure in 2016, signed up in 2022. Heck, I can’t even remember what I had for breakfast this morning). Arbitration denied.

Section 230

Having denied arbitration, the court turns to the case’s merits. The Section 230 defense flames out:

Academia has materially contributed to the alleged unlawfulness of the conduct here. Judge alleges that Academia sends email advertisements to users stating that he has mentioned their work. The linked webpage in that email informs the user that several papers, “[i]ncluding one written by” Judge, mention the user and asks the user to “Try Premium for $1 and view your Mentions.” Additionally, after a user views Judge’s profile, Academia is alleged to provide that user with similar promotional advertisements. Judge therefore alleges that Academia unlawfully packages user-contributed content—his name and purported mention of the user—within its own solicitation to pay for its Mentions service. Thus, Academia “becomes the developer, at least in part, of that information.”

Academia contends that it is providing “notifications [that] truthfully conveyed user-generated citation information created by plaintiff himself.” Not so. Instead, Academia “transformed the character of Plaintiffs’ words . . . and actions into a commercial endorsement to which they did not consent.” [Cite to Fraley v. Facebook.] The advertisements disseminate Academia’s own message (subscribe to our Mentions service) with only a vague reference to user-generated content. As such, they are not akin to simply “disseminating the same content in essentially the same format to a search engine.” Section 230 does not allow a website to cloak its own advertisements as user-created content and thereby evade state-law liability.

Arbitration Attempt #4: Attempted TOU Amendment

After Judge filed the lawsuit, Academia purported to amend its TOU:

Also, “users must click an “Agree” button referencing the Terms of Use before continuing to use Academia.” The new TOU authorizes the use of accountholders’ names in advertising.

The court treats this purported amendment as a misleading communication to the putative class members, so it triggers the protective provisions of FRCP Rule 23(d). In other words, because the changes affected the rights of class members, sending the email after the lawsuit was filed constituted a regulated communication with putative class members. The court had issues with the lack of disclosure that users weren’t previously bound by the arbitration clause, the fact that clicking on the links apparently constituted the acceptance of “using your account,” and that the new consent-to-advertising provision would extinguish pending claims. So the court strikes the effects of the purported TOU amendments on putative class members.

I’m not sure if it’s novel for the court to treat TOU/TOS amendments during the pendency of a class action lawsuit as potentially improper communications to putative class members, but I can’t recall seeing it before. The court’s approach shuts down some of the potential gamesmanship that some defendants play where they amend the TOS post-filing to try to eviscerate pending claims, with provisions such as claims waivers or arbitration requirements. If you are a defendant in a pending lawsuit and you hope a post-filing TOS amendment can eliminate it, tread cautiously.

Structurally, this case resembles the yearbook and people-finder cases, and it goes about as well for the defendants as those cases have.

Case Citation: Judge v. Academia, Inc., 2026 WL 1256876 (N.D. Cal. May 7, 2026). Academia is represented by a defense team from Fenwick and Quinn Emanuel.

Prior blog posts on Yearbook and Genealogy Cases

• Section 230’s Application to Account Terminations, CSAM, and More
• Free-Trial Commercial Database Defeats Publicity Rights Claim–LaFleur v. Yardi
• Another Tough Ruling for People Search Databases–Camacho v. Control Group Media
• Three More Yearbook/People Database Cases Signal Trouble for Defendants
• Background Reports Protected by Section 230–Dennis v. MyLife
• Yearbook Defendants Lose Two More Section 230 Rulings
• Yearbook Database Cases Are Vexing the Courts–Sessa v. Ancestry
• Court Casts Doubt on the Legality of the Data Brokerage Industry–Brooks v. Thomson Reuters
• Section 230 Doesn’t Protect Yearbook Website’s Ads–Knapke v. Classmates
• Section 230 Covers Republication of Old Yearbooks–Callahan v. Ancestry
• Section 230 Doesn’t Protect Advertising “Background Reports” on People–Lukis v. Whitepages

The post TOS Formation Fails, and So Does Section 230–Judge v. Academia appeared first on Technology & Marketing Law Blog.

Tate v. Meta Platforms, Inc., 2026 WL 1146745 (N.D. Cal. April 28, 2026)

This case involves the manosphere enthusiasts the Tate bros, Andrew and Tristian. Instagram terminated six of their accounts for “promoting’ dangerous individuals or organizations’ or for inciting misogyny.” Due to the Tate bros’ legal entanglements in Romania, the bros claimed their deplatforming was connected to “a broader, ideologically motivated campaign, carried out under governmental and corporate pressure, to marginalize dissenting or controversial viewpoints—particularly those of prominent male figures criticizing modern social norms.” The bros sued Meta for a dozen causes of action. Meta defeats the claim based on Section 230.

ICS Provider. “Meta, as Instagram’s operator, is an interactive computer service provider.”

Third-Party Content. “the information at issue (Plaintiffs’ Instagram accounts) was provided by another (Plaintiffs).”

Publisher/Speaker Claim.

Plaintiffs challenge Meta’s decision to terminate Plaintiffs’ Instagram accounts. Meta’s conduct “can be boiled down to deciding whether to exclude material that third parties seek to post online,” and is therefore immune from liability under section 230.

The plaintiffs argued that 230 doesn’t apply to contract claims. Citing Barnes, the court calls their position “unpersuasive”:

The Complaint is replete with allegations challenging Meta’s decision to “deplatform Plaintiffs,” impose a “blanket ban and improper termination” thereby “sever[ing] them from critical commercial tools and millions of followers causing them substantial and irreplaceable financial loss and damage.” Plaintiffs further allege their removal was “not an isolated enforcement action grounded in neutral application of [the] Terms of Use.” So, drawing all reasonable inferences from the Complaint’s allegations in Plaintiffs’ favor, the duty Plaintiffs allege Meta violated derives from Meta’s decision not to publish Plaintiffs’ content online and thus falls squarely within Section 230.

The court also questions if the bros stated any contract breach. “Plaintiffs have not identified any contractual promise that applies to their Instagram accounts, let alone a promise not to terminate their Instagram accounts without prior notice or a promise to provide a right to appeal.”

(Later, with obvious irritation, the court notes that “despite an hour-long oral argument with many minutes of silence while Plaintiffs’ counsel scrolled through all the potentially relevant documents on his computer, Plaintiffs could not identify any provision to support their assertion of a promise of prior notice and appellate rights”).

1983/First Amendment Claim. “Meta is a private actor and thus its conduct constitutes private abridgement of speech to which the First Amendment does not apply.”

In denying leave to amend the complaint, the court emphasizes that this lawsuit wasn’t close at all:

Plaintiffs’ oral argument statements reveal neither they nor their counsel have a factual basis for alleging state actors were working in concert with federal actors and Meta to violate Plaintiffs’ First Amendment rights. Nor do they have a factual basis for alleging Meta violated some contractual promise to provide advance notice prior to terminating Plaintiffs’ Instagram account and not providing appellate rights, let alone a basis for alleging such breach caused $50 million in damages.

Andrew allegedly “allocated 400,000,000 of personal funds to battle Google, Meta, TikTok,” yet all that money didn’t turn the Tate bros into lawmaxxers.

The unsuccessful plaintiffs’ lawyers include Raymond Brenneman of Brenneman Apc and Thomas Maniotis of Equity Legal, PLLC. Maybe the Tate bros would have had more courtroom success if they added some women lawyers to their litigation team.

Ligon v. Meta Platforms Inc., 2026 WL 1146091 (N.D. Cal. April 28, 2026)

This is a very long and detailed opinion in response to a pro se lawsuit.

Ligon was a 2024 Republican candidate for the Georgia state senate. He got 633 votes in the Republican primary. Ballotpedia also says that he survived two lightning strikes. Wowza. It made me wonder what message God may be trying to send to him…?

Ligon placed Facebook ads for his campaign, but Facebook quickly pulled the ads and then permanently suspended his personal and campaign accounts. In a footnote, the court recaps Facebook’s emails to Ligon that suggest a plethora of reasons why his ads may have been pulled, including trademarks, fake images of others, content that put others at risk, bypassing Facebook’s ad verification system, and copyright. Ligon sued Facebook pro se for eight different claims.

Section 230

In a footnote, the court rejects Ligon’s “but the algorithms” attempt to say that his content was Facebook’s first-party content:

Defendant’s “editorial decisions” includes publishing decisions, like whether to remove published material, which are covered by section 230(c)(1) when the content was created by a third-party, but such editorial decisions alone do not constitute content creation. Plaintiff does not allege that any content was made or contributed to by Defendant, except insofar as he alleges that Defendant created the algorithm that “drives” the enforcement of Defendant’s content moderation and that this constitutes Defendant’s own content.  However, Defendant’s use of an algorithm to assist in its publishing functions does not take those actions outside the scope of its conduct as publisher so long as the algorithm is not assisting in the creation of content, which Plaintiff does not allege is the case here

The court turns to the publisher/speaker element. The Tate court applied 230 to Meta’s alleged promises to provide pre-termination notice and an appellate right. This court says those are not publisher/speaker claims:

providing notice and an appeals process, even when related to publishing decisions, is not an activity necessarily derived from the status of publisher, and sending emails or other notices about a user’s content is similarly not a traditional element of publication

As a result, the claims predicated on the failed notice and appellate rights aren’t preempted by 230. From my perspective, both the notice and appellate rights would kick in only if Meta decides not to publish the content, so I think they are inextricably linked to publication decisions. In other words, I agree with the Tate decision and disagree with this one.

Section 230 ultimately applies to the other claims. As a general statement, the court notes that “The Ninth Circuit has consistently held that decisions to publish content, or not publish content, or revoke content from publication, are quintessential publishing functions for which interactive computer services cannot be held liable under section 230(c)(1).” [Cite to Roommates.]

The court evaluates Section 230’s application to each claim in significant detail:

Plaintiff’s Claim One is a constitutional cause of action alleging that Defendant violated his First Amendment rights; his Claims Three and Four are related federal statutory claims for conspiracy to violate his civil rights and failure to prevent the conspiracy. These claims are based squarely on Defendant’s decision to remove and suspend Plaintiff’s content. The First Amendment claim is based solely on Defendant’s publishing conduct inherent to its status as publisher and remedy would require it to undertake further publishing activity by reactivating or reposting Plaintiff’s content. The conspiracy claim is essentially an allegation that Defendant coordinated with other entities to make its publishing decisions, and the tools Defendant chooses to use when making publication decisions—including potential consultation with other actors—are part of Defendant’s discretion as publisher whether to publish content. Remedy for this claim would also require Defendant to undertake specific publication actions because the alleged outcome and goal of the conspiracy is the removal of Plaintiff’s content. It then follows that the failure to prevent conspiracy claim is merely an allegation that Defendant failed to prevent a particular editorial decision from being made and enacted, whose remedy would also require Defendant to undertake specific publishing actions. It is immaterial that these claims are premised on the removal of Plaintiff’s content for political reasons—Ninth Circuit courts have consistently held that Section 230(c)(1) immunizes the removal of political content. As such, Claims One, Three, and Four are inseparable from Defendant’s status or conduct as publisher and are barred by section 230(c)(1).

[Eric’s note: the court doesn’t address the seemingly obvious problem that a statute can’t override constitutional protections.]

Plaintiff’s Claim Seven is brought under 42 U.S.C. § 1981, alleging that Defendant discriminated against him in the making and enforcement of contracts “by suspending his ads and accounts based on his conservative political viewpoint.” As with the above claims, this claim is based solely on Defendant’s suspension and removal of Plaintiff’s content and profiles, which is essential publishing activity routinely protected by Section 230(c)(1)’s liability limitations….

Plaintiff’s breach of contract claim does not allege that Defendant or any of Defendant’s agents made specific, enforceable promises to him related to the suspension of his content; instead, he relies on the general contractual underpinnings of his use of Defendant’s platforms and payment to Defendant. His statement that Defendant’s acceptance of his payment created a duty to publish his content does not constitute an allegation that Defendant made a specific promise to publish Plaintiff’s content which was intended to supersede its discretion as publisher to make publication decisions. Whether based on an implied contract or a document like the Terms of Service, this type of general contract-based allegation has routinely been found insufficient to overcome section 230’s bar on liability for publishing conduct. As written, Plaintiff’s breach of contract claim is premised solely on Defendant’s decision to suspend his accounts and his advertisements.

[In a footnote, the court adds: “Other courts have gone even further when barring contract claims under section 230(c)(1) to broadly find that contract claims based on the removal of content are inseparable from internet platforms’ status as publishers and are therefore barred. In contrast, still other courts have found that contract claims based on an alleged contractual duty of any kind are not barred by section 230(c)(1).” A shoutout to the Calise and YOLO panels for ratcheting up courts’ confusion on this point.]

Similarly, Plaintiff’s sixth claim for breach of the implied covenant of good faith and fair dealing is also barred by section 230(c)(1), insofar as this claim seeks to hold Defendant liable for the suspension of Plaintiff’s accounts and ads, for Defendant’s decision to continue publishing other content while removing Plaintiff’s content, and for the frustration of the contract via Defendant’s removal of Plaintiff’s content. Any implied promise by Defendant to use “good faith” or any general statements in the terms of service/use about its criteria when making editorial decisions like removing content is not the type of specific, directed promise that could take this claim out from the umbrella of section 230(c)(1)….Plaintiff’s allegation that Defendant enacted the suspensions “in bad faith” does not thwart section 230(c)(1) immunity….

Plaintiff’s Claim Eight for intentional infliction of emotional distress is also barred by section 230(c)(1) to the extent that it is based on Defendant’s removal of his content from its platforms. Plaintiff cannot hold Defendant liable for preventing him from accessing its platforms to publish content or removing his content, as this would hold them liable for its quintessential publishing decisions regarding what information may be published and contained on their platforms

The court then also dismisses everything (both the 230-preempted claims and the non-preempted claims) for lack of merit.

Violations of Constitutional Rights

“Plaintiff’s constitutional claims fail because he has not alleged facts showing that Defendant Meta is a state actor for constitutional purposes.”

Contract Breach

“Plaintiff’s claim that Defendant’s acceptance of his payment created an implied contract by which they agreed to run his ads is directly contradicted by the Advertising Standards and terms of service/use, which reserve to Defendant the ability to reject or restrict advertisements “for violation of [its] policies at any time.””

Implied Covenant of Good Faith and Fair Dealing

“Defendant is explicitly allowed under the terms of the contract to reject Plaintiff’s ads for any reason whenever it wants.”

IIED

Plaintiff has not identified any conduct by Defendant beyond the sending of five emails: two of the emails were identical, informing Plaintiff that his accounts or advertisements had been identified as and restricted for using copyrighted music; four of the messages informed Plaintiff of Defendant’s findings upon reviewing the content; and one sent “on behalf of Universal Music Group” included information about the penalties for violations of copyright law and the possibility of a lawsuit. None of this conduct plausibly rises to the level of “outrageous” behavior. There are also no facts alleged to support the contention that Defendant’s conduct was intended to injure or committed with the knowledge that sending such emails was likely to cause extreme emotional distress

Ligon has a better chance of getting and surviving a third lightning strike than winning an account termination/content removal case against Facebook.

* * *

One final point. You may have noted that both plaintiffs in this blog post could be characterized as “right-wing” (I don’t know what qualifies as “conservative” any more). I haven’t crunched the stats, but I believe that “right-wing” plaintiffs are overrepresented in the account termination/content removal genre. Some possible hypotheses about why that could be the case:

• The plaintiffs would argue that it’s because the services are systematically biased against right-wingers.
• There have been numerous studies indicating that right-wingers more frequently post content that transgresses the applicable TOS. Essentially, as civility degrades across our society, right-wingers more frequently embrace content–racism, sexism, violent statements, etc.–that crosses previously set standards for civility.
• Right-wingers are more likely to sue as part of their self-identity as victims and overall feelings of grievance.

I welcome other hypotheses. If anyone want to crunch the data to test my hypothesis, I can help. This could be a good paper topic.

My hypothesis poses some serious challenges to advocates of digital due process requirements. It’s an equity/equality dilemma. We might treat everyone equally with procedural protections for their online speech, but that may not produce equitable results. In practice, people with majority characteristics may be able to weaponize those legal tools to entrench their majority position. See, e.g., Lewis v. Google. If your goal is to raise up disenfranchised voices, watch out for any solution that can be turned around to benefit the majority.

The post Meta Defeats Two More Account Termination/Content Removal Lawsuits appeared first on Technology & Marketing Law Blog.

In a split opinion, a majority says this TOS formation failed:

Zeus chose to bury the page containing that agreement behind a hyperlink that itself was written in small, gray text that Tejon did not have to click. This text was located beneath large, red action buttons that Tejon did have to click. Was the hyperlink text enough to put Tejon on notice that clicking on the large, red buttons would subject him to binding arbitration? We find that it was not.

* * *

As usual, the majority starts with the wrap taxonomy. The majority says that there are only two wrap options: clickwrap or browsewrap. I wish there were zero nodes on the wrap taxonomy, but if we’re going to have a taxonomy, two nodes is too few to capture the diversity of TOS formation practices. Importantly, the majority doesn’t leave room to categorize the screen as a “sign-in-wrap,” which is how I think it would be how other circuits characterize it.

With only two choices, the majority says this TOS formation process is a “browsewrap.” (The dissent says the “parties agree that Zeus’s subscription page is a browsewrap agreement,” so the problem may lie in Florida/11th Circuit law forcing the binary choice). Once that wrap characterization is made, it’s pretty well accepted that browsewraps aren’t enforceable. In practice, the majority closely followed the Berman opinion from California, which was a sign-in-wrap opinion, and the majority had many other sign-in-wrap precedents to consider if it went looking. #EndTheWrapTaxonomy.

Despite the wrap tangent, the majority proceeds with the standard approach of reviewing whether the TOS disclosure was sufficiently conspicuous. The majority says no.

• “Zeus placed [the hyperlink] beneath two large, red action buttons that were prominently featured at the center of the page.”
• “Zeus’s terms of service hyperlink is printed in a small font on the bottom half of the page. It is easy to overlook given the larger font sizes and bolder colors of other elements on the page.”
• “all the text below the red action buttons, including the hyperlinked terms, appears in a dim, gray color.” The “dim” color phrase reminds me of the Chabolla reference to “timid” fonts.
• The underlined text was indistinguishable from the other text, and “Zeus’s hyperlink is not highlighted in a different color and is not in all capital letters.” CAPITAL LETTERS…SERIOUSLY?
• “Zeus’s terms of service notice simply does not say anything about arbitration. It would have been simple enough for Zeus to state plainly that clicking on one of the red buttons would subject any dispute between the user and Zeus to binding arbitration….Zeus chose instead to place the provision on a separate terms of service page. Having made that choice, it was required to design its website to ensure that a reasonable user would know to click to view the terms of service page, and it failed to do so.” Ugh, I’ve complained many times about this problem with layered notice. A court can always second-guess that the layered notice should have included the thing that is being contested by the plaintiff. This makes layered notices impossible because the top layer has to reference every possibly challengable term, which is all of them.

Notice that the majority doesn’t engage with the transaction context, another key part of the Ninth Circuit Chabolla/Godun tests. In general, the Ninth Circuit presumes that consumers signing up for a subscription will expect terms to govern their ongoing relationship. The majority doesn’t consider that possibility.

The majority summarizes:

None of the things that we have discussed—location on the page, font size, contrasting color, capital letters, underlining, informational content, and so forth—is individually required to pass a conspicuousness assessment. The point of these design elements is to place a reasonably prudent internet user on notice of the agreement at issue. The internet site owner may utilize some combination of these elements, or perhaps something else entirely, to bring attention to the agreement. Even better, the owner could use a clickwrap agreement. But Zeus chose to do none of this.

Judge Branch, a TAFS judge, dissented. She says the “hyperlink was centrally positioned directly beneath the action buttons, where the user’s attention is easily drawn; colored in light gray to contrast with the black background; underlined; appeared the same size as most of the text on the page; and set apart from a block of text below. A reasonably prudent person would not have missed it.”

(As usual, there was zero empirical support from either the majority or dissent for any assessment of what a reasonable consumer would think).

* * *

This ruling brings to mind the lament of Judge Bybee in the Chabolla decision: “Our decision today will drive websites to the only safe harbors available to them, the clickwrap or scrollwrap agreements.” You’ve been warned (repeatedly).

Case Citation: Tejon v. Zeus Networks, LLC, Case No. 24-11114 (11th Cir. May 1, 2026)

BONUS: U.S. v. Blocker, No. 25-1536 (7th Cir. May 5, 2026)

the fact that a contract is lengthy and poorly understood does not justify reading it with a thumb on the scale. The language of this contract unambiguously permits Dropbox to scan all files at its option and reveal the contents for five specified purposes—and Blocker does not deny that, having discovered child porn, one or more of these purposes applies.

The post 11th Circuit Rejects TOS Formation–Tejon v. Zeus appeared first on Technology & Marketing Law Blog.

Embed/in bed

The central question in the case is whether embedding is infringing. We don’t get an answer to that question. XXL chose to defend the case on other grounds at the district court, so it’s not at issue in the appeal. As a result, the panel assumes “for the purposes of this appeal, that embedding constitutes actionable use.”

[Note: normally my blog coverage would include a screengrab of one of the videos in question so you could see the content at issue in this dispute. Given this ruling, I worry I’ll join the defendant list if I do so. More chilling effects from legal uncertainty.]

Fair Use of Jordan Video

Nature of Use–Transformativeness

The court questions the transformativeness of XXL’s embedding:

Townsquare republished the Jordan Video in a news article describing a controversy surrounding the video, Townsquare’s reporting at times appears more focused on the mere existence and presentation of the video itself. No place is that more evident than in the article’s headline. Instead of referring to any of the article’s commentary, the headline presents the video as the article’s primary draw: “Michael Jordan Intervenes in Heated Confrontation Involving Wack 100 in Viral Video from 2015 —Watch.” The article then opens by explaining that the DailyLoud had posted the video on X just one day prior. That is the extent of the article’s discussion of the video’s online circulation. It moves on to describe the incident depicted in the video, but that portion of the article simply describes what viewers of the video can see for themselves….

there is a difference between gesturing towards a transformative message and actually communicating that message. Here, Townsquare’s commentary was limited to a few sentences explaining that a third party had republished the video and opined that an individual who does not appear in it was Charleston White. Notably, the article does not identify anything in the video that would corroborate that speculation for the viewer; instead it relies on the unexplained say-so of the DailyLoud’s post. It is therefore debatable whether the article meaningfully communicated any new commentary about the video (which could justify its copying) or instead merely summarized commentary about the fight depicted and relied on the video solely as an illustrative aid (in which case the copying served little transformative function)

Despite these musings, the court doesn’t definitively resolve the transformativeness question, saying the other factors negate fair use.

Nature of Use–Commerciality

“Townsquare is a for-profit entity, a fact that weighs against fair use….Townsquare ran advertising alongside its embedded depiction of the Jordan Video, but classic legacy news media such as newspapers, news magazines, and commercial television stations did, and do, the same.”

The court decides the nature of use factor is at best neutral.

Nature of Work

“The Jordan Video was largely factual, and, as Richardson concedes, did not involve meaningful creative choices. That Richardson was fortunate to be in the right place at the right time to record Jordan’s unexpected intervention does not make the work creative.” The court says this factor weighs in favor of fair use but “plays a minimal role in the fair-use assessment.”

Amount Taken

XXL republished the entire video, which it said was required by the embedding. The panel questions the necessity:

Townsquare could have, for example, republished the text of the post along with a portion of the video. Or it could have taken a screenshot of the post with a still of the video (as Townsquare did for the article’s headline). Or it could have simply reported on the controversy and included a hyperlink to the post, forgoing any reproduction of the video. While embedding the post may have been more expedient for Townsquare, nothing compels a conclusion (and certainly not at this stage) that embedding the post and, with it, the entire video was reasonable in relation to Townsquare’s limited news reporting.

I guess the panel is really that willing to second-guess XXL’s editorial processes? And the court says XXL could have taken a video screengrab instead of embedding the whole video, but later in the opinion it doesn’t resolve whether that screengrab would itself be infringing, so…is that a non-infringing option or not?

XXL also argued that viewers needed to see the entire video to evaluate its hypothesis about who’s in the video. The court responds that the person at issue never appears in the video (only off-camera).

XXL also argued that embedding allowed its audience to see the original comments. The court responds that XXL could have just done summary reporting of that information.

Instead, the court says “Perhaps discovery may offer further editorial or technological justification for Townsquare’s decision to use the entirety of the video.” Sounds expensive.

Market Effect

The court says this is the “most important” fair use factor.

The court says Richardson’s complaint didn’t make clear what the market for the video is. The court rewards this pleading omission: “Townsquare cannot decisively demonstrate the absence of an effect of its use of the Jordan Video on the market for the original video based on the allegations in a complaint that say little or nothing about the nature of that market.” It’s true that the defense has the burden to establish fair use, but the panel also rewards plaintiff drafting gamesmanship.

Without any guidance from the complaint, the panel then veers into speculation-land:

It is entirely unclear that a viewer of Townsquare’s story would gain anything from watching a version of the Jordan Video unencumbered by Townsquare’s reporting, advertising, and the X post text and border. And if viewers are unlikely to gain anything, they would have little reason to seek out the Jordan Video from Richardson. And without viewers, Richardson would experience market harm either by lost advertising revenue (if, like Townsquare, he had published the video online) or lost rental or purchase revenue (if he provided the video directly to consumers).

I can’t tell if the initial X poster (DailyLoud) was authorized or not. If it was an authorized post to X, then odds are that the X posting wouldn’t generate any of these revenues, in which case the court’s discussion is both hypothetical and wrong.

The court summarizes its view on the market effect at early litigation stages: “because Townsquare has not shown that its use of the Jordan Video is not a market substitute for the Jordan Video itself, the fourth statutory factor weighs against fair use.”

Summary of Fair Use

To whatever extent Townsquare’s use of the Jordan Video is transformative (if at all), that fact is outweighed by Townsquare’s decision to republish the entire video. That choice rendered its use of the video a plausible market substitute for the video itself. Discovery may further explicate the relevant market factors, and thus demonstrate that Townsquare’s use of the full video was reasonably justified or that customers interested in watching the video would still seek out the original to avoid the article’s text and advertising

As this passage indicates, XXL could still win fair use–it will just take more time and money to find out. But notice how the court had to twist the factors to make them (other than the amount taken) actually weigh against fair use. Perhaps reflecting the pleading burdens, the court was extraordinarily charitable to the plaintiff–almost certainly more than the plaintiff deserved. This is how bad cases survive in court longer than they should.

Screenshots as Infringement

The lower court said the screengrabs were de minimis copying. The court says that doctrine doesn’t apply because “By taking screenshots, Townsquare made literal copies of video “frames” and incorporated those copies into its articles.” The court sees the de minimis exception quite narrowly: “we have typically found de minimis use where the defendant’s inclusion of the copyrighted work was incidental or unidentifiable in the secondary work.” In contrast, “Townsquare prominently displayed the screenshots, which are clearly recognizable as taken from the embedded videos (as Townsquare intended them to be), to communicate the subject matter of its articles.”

The court doesn’t address fair use for the screengrabs because the lower court didn’t rule on that topic. Nevertheless, the court cautions the lower court that “fair-use analysis is generally ill-suited to the pleading stage.”

It’s truly mind-blowing to believe that it could be infringing to display a screengrab from a video when discussing the video. I expect courts will bless the republication of screengrabs eventually, but not using the de minimis doctrine.

Permission to Embed the Melle Mel Video

Art of Dialogue uploaded the Melle Mel video to YouTube. YouTube’s upload TOS expressly authorizes third-party embedding, which seemingly extends permission to XXL. Richardson said the court couldn’t consider these facts, but the court responds that Richardson:

does not, for example, assert that the Melle Mel Video was uploaded onto YouTube without his consent or that the version of the Terms that Townsquare attached was in any way inaccurate. Had he done so, the resulting factual dispute would have rendered the Terms premature for consideration at the pleading stage. But his failure to do so confirms that he sought to rely on “clever drafting” to render his complaint “invulnerable to Rule 12[c].”

A reminder that the court just accepted similar “clever” drafting in the fair use considerations…so I guess pleading cleverness only works sometimes? Also, the court saying that all Richardson had to do was contest the initial upload authorization or the TOS terms (which they would only do in good faith per Rule 11–wink wink) and the court would survive the case to summary judgment provides plaintiffs with yet more leverage.

To the extent that XXL didn’t comply with any conditions from YouTube’s TOS embedding license, the court says that’s YouTube’s issue to enforce, not Richardson’s.

Implications

I could recapitulate this decision:

• The Second Circuit doesn’t like to decide fair use on motions to dismiss. (XXL requested judgment on the pleadings, but the court sidestepped the difference in stages by collapsing the two into a single “pleading stage”).
• The de minimis defense is a niche exception.
• Social media TOSes authorize third-party embedding. If the uploader had the permission to upload, then downstream embedders aren’t liable.

Stated this way, perhaps this opinion doesn’t look so bad.

However, the court’s reticence to resolve fair use early is problematic in light of Richard Liebowitz’s recent litigation rampage in Second Circuit-governed courts, where courts had to resolve fair use early to clear out his trash lawsuits. Rulings like this help copyright trolls and other copyright owners weaponize the litigation process and increase defense costs. Even if the lower court rules for Townsquare/XXL on remand, significant damage is done simply by letting unmeritorious cases get that far.

All of these litigation efforts could be avoided if the Second Circuit followed the Ninth Circuit’s approach to embedding, a question that wasn’t before this panel. In the 9th Circuit, embedding isn’t copyright infringement, so defendants don’t need to justify fair use or try to make the de minimis doctrine something more than it is. We’ve been waiting a long time for the Second Circuit to clarify its stance on embedding. Until then, we get rulings like this and expensive litigation cycles.

Similarly, we need stronger judicial pronouncements that screengrabs aren’t infringing. The entire meme and GIF ecosystem is riding on that issue.

Case Citation: Richardson v. Townsquare Media, Inc., 2026 WL 1097502 (2d Cir. April 23, 2026)

The post We Still Don’t Know the Second Circuit’s Position on Embedding and Copyright Infringement–Richardson v. Townsquare appeared first on Technology & Marketing Law Blog.

After the Supreme Court’s first and only CFAA decision in Van Buren v. US in 2021, I wrote that the Court “could have done 10% more work here and provided clarity on very key questions….[but SCOTUS] declined the opportunity to do so. In the end, there are remarkably few clear, declarative sentences in this opinion that provide guidance for future cases.”

The Court intentionally left open many key questions. And so it should come as no surprise that there has been an emerging doctrinal divergence related to key concepts with the CFAA. Perhaps most notably, Courts have been applying the concept of “technological harm” in the CFAA differently in different circuits.

In Van Buren, Justice Barrett wrote:

…§1030(a)(2) also gives rise to civil liability, §1030(g), with the statute defining ‘damage’ and ‘loss’ to specify what a plaintiff in a civil suit can recover. ‘[D]amage,’ the statute provides, means ‘any impairment to the integrity or availability of data, a program, a system, or information.’ §1030(e)(8). The term ‘loss’ likewise relates to costs caused by harm to computer data, programs, systems, or information services. §1030(e)(11). The statutory definitions of ‘damage’ and ‘loss’ thus focus on technological harms—such as the corruption of files—of the type unauthorized users cause to computer systems and data. Limiting ‘damage’ and ‘loss’ in this way makes sense in a scheme ‘aimed at preventing the typical consequences of hacking.’ Royal Truck, 974 F. 3d, at 760. The term’s definitions are ill fitted, however, to remediating ‘misuse’ of sensitive information that employees may permissibly access using their computers.

Van Buren v. United States, 141 S. Ct. 1648, 1659–60 (2021) (quoting 18 U.S.C. § 1030(e)(8), § 1030(e)(11)).

Multiple district courts, especially in SDNY and the Northern District of California, began to interpret Van Buren to demand that any CFAA “loss” be tethered to technological harm. Meanwhile, some other district courts read the statute to allow any claim to proceed that included an allegation that a plaintiff had investigated an offense and incurred $5,000 in so doing.

Where this comes up most consistently is in the context of an internal investigation related to alleged unauthorized access. Courts increasingly have disagreed about whether an internal investigation, untethered to “technological harm,” meets the standard for a qualifying loss under §1030(e)(11). While not quite rising to the level of a circuit split, lower courts in the 2d, 3d, and 9th Circuits have increasingly required specific pleading at the motion to dismiss stage to allege that the internal investigation posited as a “loss” was tethered to “harm to computer data, programs, systems, or information services.” In the 5th, 7th, and 11th circuits, courts were much less inclined to require that specific pleading.

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On Jan. 21, 2026, the Tenth Circuit became the first circuit court to squarely reject the CFAA interpretation that investigations must be tethered to technological harm. It did so with Moxie Pest Control (Utah), LLC v. Nielsen, and it concluded that investigative costs qualify as a CFAA “loss” even when the plaintiff does not show or even allege “technological harm” like corrupted data or damage to systems.

According to the Tenth Circuit, under § 1030(e)(11)’s plain text, any reasonable cost of responding to an offense qualifies.

—

This was the general divide that had emerged around the country pre-Moxie.

The first camp suggests that costs must be tethered to clear evidence of technological harm to qualify as a loss.

The courts in this camp do not reject investigative costs as a category. But conclusory pleadings related to investigations in the absence of technological harm often get dismissed. These courts have demanded specifics about what was done, why the investigation was necessary, how it ties to the intrusion, and evidence that the “loss” was tethered to “harm to computer data, programs, systems, or information services.”

Many recent decisions have been pushing in that direction:

• CoStar Group, Inc. v. Leon Capital Group, LLC (D.D.C. 2022) dismissed where the claimed loss was time and money spent “identifying, investigating, and attempting to block and otherwise respond,” but the allegations did not adequately plead cognizable CFAA loss.
• The Phoenix Co., Inc. v. Castro-Badillo (D.P.R. Aug. 9, 2024) dismissed where the plaintiff relied on “investigation” but did not plead what investigative measures were taken and what damage, if any, was actually caused.
• Sylabs Inc. v. Rose (N.D. Cal. Sep. 26, 2024) dismissed where “loss” was pegged to forensic analysis but the allegations were essentially conclusory and failed Rule 12(b)(6) specificity expectations.
• William Gottlieb Mgmt. Co., LLC v. Carlin (S.D.N.Y. Mar. 26, 2024) dismissed where the “investigation” just confirmed what the plaintiff already knew and did not involve analyzing effects on computer systems.
• X Corp. v. Center for Countering Digital Hate (N.D. Cal. 2024) dismissed X Corp.’s CFAA claim at the motion-to-dismiss stage because the court found that X failed to allege technological harm necessary under § 1030’s loss definition, and that internal costs and reputational advertising revenue losses tied to CCDH’s reports and investigations did not allege harm to computer data, systems, or programs as contemplated by the statute. Also, the broader complaint was treated as a SLAPP aimed at punishing criticism rather than bona fide CFAA conduct.

If you read those cases as a group, you find situations where courts are skeptical of internal investigations because they seem pretextual. According to these cases, an alleged investigation is not a blank check to proceed with a CFAA claim. Courts want to see that the investigation was a response to an access violation causing technological harm and not just a litigation prep exercise.

The second camp is more of a magic words approach. If there’s alleged unauthorized access, and you say there was an investigation that cost $5k, the case moves to discovery.

This was pretty much the consensus around the country pre-Van Buren. But lower courts were fairly evenly divided about that concept of loss post-Van Buren.

The Tenth Circuit in Moxie is now a clean appellate-level entry for this camp.

According to Moxie, the CFAA’s definition of “loss” explicitly includes response and damage-assessment costs. So district courts should not treat Van Buren as silently rewriting the civil-remedies threshold into limiting investigations to those tethered to technological harm.

Moxie is now the most prominent post-Van Buren statement on this question, and because it is a circuit court opinion, and not a one-off district court order, it will carry significant weight, and may permanently tip the scales in favor of this camp.

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The facts of Moxie are as follows:

The plaintiffs were a group of affiliated pest-control companies that alleged employees of their competitor, Aptive Environmental, bribed current and former Moxie representatives to turn over confidential, password-protected sales data (including leaderboards) stored in Moxie’s system, which Aptive then allegedly used to recruit door-to-door sales representatives. Moxie sued Aptive and several individuals under the Computer Fraud and Abuse Act (CFAA), RICO, the Defend Trade Secrets Act (DTSA), and Utah’s Uniform Trade Secrets Act (UTSA).

The district court dismissed Moxie’s CFAA claim for failure to plead a qualifying “loss” post-Van Buren, denied motions to compel broad damages discovery, and granted summary judgment on the other claims for lack of causation. On appeal, the Tenth Circuit reversed the dismissal of the CFAA claim, holding that Moxie’s allegations of over $5,000 in investigative costs incurred in response to unauthorized access plausibly satisfied the CFAA’s “loss” definition even absent technological harm, affirmed the discovery ruling, affirmed summary judgment on RICO, and reversed in part the DTSA/UTSA rulings on remedies and remanded for further proceedings.

—

For practitioners in this space, it isn’t hard to see how Moxie could be problematic.

There is a chicken-or-the-egg conundrum with the statutory language cited by the Tenth Circuit. While § 1030(e)(11)’s definition of loss includes any reasonable cost of responding to an offense, the statute itself does not offer any guidance on what the *offense* must be that provokes the investigation. By the Tenth Circuit’s definition, it doesn’t matter. Any conduct associated with unwanted access will do. And so, activity that does not cause technological harm can give rise to a CFAA claim if a plaintiff investigates it and incurs $5,000 in expenses.

The problem is twofold: (1) It lets plaintiffs convert a whole range of non-technological harms into federal computer crimes, thus seemingly contradicting the guidance of the Supreme Court and the statute itself, which requires harm to computer data, programs, systems, or information services; and (2) The $5,000 threshold becomes nigh-meaningless. Any plaintiff with a lawyer and an incident-response vendor can hit $5,000 by lunchtime. Indeed, a recent case found that a pro se plaintiff spending 25 hours of his own time was sufficient to establish a “loss” under the CFAA. Karcz v. Mezouak, 2026 WL 622679 (D.N.J. March 5, 2026).

In other words, conduct that would not give rise to a CFAA violation because the alleged harm is not technological in nature under the Supreme Court’s definition of a “loss” can easily become a CFAA “loss” as long as a plaintiff alleges that they investigated it.

That’s a deeply circular definition of “loss”. But Moxie didn’t grapple with that deeper circularity head-on.

Making benign integrations and free speech criminal

Let me lay out a couple of different fact patterns where this often plays out.

Even though the defendants here are highly unsympathetic, that’s not always the case. The alleged conduct was plainly wrongful. It involved alleged bribery, misuse of credentials, and copying confidential information from a protected account. But the CFAA should be reserved for technological harms, not merely unauthorized taking of information. That distinction matters. The opinion blurs the line between digital trespass and ordinary misuse of access, even though the real injury alleged was the taking of valuable business information, not damage to the integrity or functioning of the computer system itself. If the system still worked as designed, was not impaired, and suffered no meaningful technological disruption, then this looks much more like a trade secrets or unfair competition case, not a CFAA claim.

That overexpansion matters beyond these bad facts. Once courts allow the CFAA to reach conduct that does not cause technological harm, the statute becomes a much more flexible weapon for private plaintiffs and platforms seeking to recharacterize disfavored access as computer intrusion.  There are countless software integrations whose primary business purpose is to integrate some sort of useful activity within another company’s platform. Lots of companies build these useful layers into and on top of other companies’ software. Most of the time, the purpose of these integrations is to provide something of value to end users, but of course, large platforms are often reluctant to cooperate with third parties.

Created by ChatGPT Dec. 2025

The panel says, almost in passing, that “we need not decide whether the conduct Moxie alleged violates the CFAA. It does,” because Nielsen used a pilfered password, and then goes on to hold that investigative costs alone can satisfy CFAA loss without any technological impairment. The problem is not that the defendants should win. They should not. The problem is that the opinion does nothing to distinguish credential theft from the far more ordinary reality of delegated access and platform integrations, where a user intentionally lets a third-party tool access an account through stored credentials, session continuity, or other account-linked mechanisms. In a world full of CRM plug-ins, analytics layers, scheduling tools, and middleware, courts should be careful not to let “access by someone other than the nominal account holder” plus “investigation” equal a federal crime. The “loss” element needs to be a meaningful filter. If it isn’t, lots of benign conduct becomes illegal.

If investigative expenses are enough, regardless of whether tethered to a technological harm, then a platform that objects to a researcher, watchdog, journalist, or advocacy group can more readily plead its way past dismissal by alleging unauthorized access plus the cost of figuring out what happened. Moxie sits uneasily beside X Corp. v. Center for Countering Digital Hate, where Judge Breyer recognized the basic danger directly, writing that the case was “about punishing the Defendants for their speech” and that X sued “in order to punish CCDH” for publications criticizing the platform.

To be clear, Moxie did not involve public-interest criticism. It involved commercial espionage. But doctrine built in hard cases does not stay in hard cases. Once courts make it easier to plead CFAA claims based on contested access and post hoc investigation costs, that logic can be repurposed by platforms seeking to suppress unfavorable reporting, auditing, or accountability research. The right lesson from Moxie should have been narrow, but instead it was unequivocal and unqualified.

Don’t get it twisted: If self-motivated, sponsored investigations untethered to technological harm qualify as losses under the CFAA, then any integration disfavored by a platform can be made illegal, regardless of how valuable or pro-social it may be. And any “access” that’s disfavored by a platform can be made illegal, too. Regardless of how benign or pro-social it may be.

That’s the legal landscape that Moxie creates.

In the coming months, the Ninth Circuit is likely to revisit this issue with Perplexity AI’s appeal of the preliminary injunction issued by the Northern District of California in its case against Amazon. When that case is decided, we can expect to get a clearer picture of whether there will be a consensus on this issue or a true circuit split.

The post Tenth Circuit Broadens CFAA ‘Loss’ Beyond Technological Harm–Moxie v. Nielsen (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

The court starts off with this broad proposition:

Section 230 compels dismissal of claims seeking to hold platforms liable for activity amounting to sexual exploitation of one user by another when the factual predicate is that the two users engaged in messaging using the platform’s service” [cites to Doe v. Grindr, Doe v. MySpace, Doe v. Snap, Doe 1 v. Backpage, Doe II v. MySpace, In re Facebook, LW v. Snap, Doe v. Grindr (S.D. Fla.), Doe v. Kik.]

Negligence

The plaintiff tried the standard set of arguments that Discord was defectively designed because it didn’t adhere to the plaintiff lawyers’ vision of how services should operate:

Plaintiff’s “Negligence” claims seek to impose liability on Discord for (i) designing its messaging service to facilitate harmful private communications; (ii) allowing “unsupervised” messaging between users; (iii) failing to require phone number verification or otherwise “screen users”; (iv) failing to “implement … parent controls” and “parental notifications” that would monitor and supervise messages; (v) failing to remove user profiles and block messages from adults who message teens; (vi) failing to set default safety settings that would block messages between unconnected users; (vii) offering an “open chat function” without sufficient moderation; and (viii) failing to monitor for, report and prevent the use of [its] app[ ] by sexual predators.”

The court says all of those configuration choices are editorial choices protected by Section 230:

These claims each amount to Plaintiff seeking to impose a duty on Discord to monitor, screen, and block Plaintiff’s communications with other Discord users. All of these duties would require Discord to alter or amend how it publishes, monitors, screens, flags, blocks, or removes users’ messages and profiles, including how it offers to its users “neutral tools” that allow users to communicate in different chat forums and formats. [cite to Jones v. Dirty World (6th Circuit)]

Notice how this court implicitly veers away from the social media addiction rulings in California and numerous other precedents saying that design choices can be agnostic about what content they apply to and therefore are not based on third party content.

Strict Liability

The court treats the products liability claim the same as the negligence claim. The plaintiff complained about the following practices:

The Complaint faults Discord for providing a service that “allow[s] children to come into contact with child predators, and asserts that Discord should provide “[e]ffective parental controls” to stop harmful message exchanges; reconfigure features to “block[ ] direct messaging between child and adult users”; block content from “known abusers”; and offer a more restrictive “[c]ontrolled chat” option.

The court responds that these claims “would require Discord to more perfectly screen for and block harmful messages and alter the operation of the neutral tools it provides users to send messages,” which Section 230 does not permit.

Concealment/Failure to Warn

The court says the concealment/failure to warn claims also second-guess Discord’s editorial decisions. The court says:

Courts cannot accept attempts to repackage what is in actuality “publisher” actions as “torts of omission” to evade Section 230

Thus, “these allegations appear to be simply a restatement of Plaintiff’s negligence claims and product liability claims already found to be barred by Section 230. Put another way, the only way that Discord could address these aspects of its platform would be “to take certain moderation actions” that would eliminate the alleged discrepancy between Discord’s description of its moderation efforts and the “reality” of its moderation – again, “publishing” actions.” [cite to Bride v. YOLO]

Failing to warn users that Discord is a “dangerous” app “is at root a claim based on “publication” choices related to moderation efforts, which fall within the immunity provided by Section 230.” Cites to Bride v. YOLO, Doe v. Grindr, Wozniak v. YouTube.

The court also questions if there was any actual omission: “Discord does disclose and issue transparency reports that – as is the case with any platform that handles an immensely high volume of messages each day – do show that its content moderation efforts are imperfect.”

Misrepresentation

Plaintiff’s claims seek to hold Discord liable for alleged “misrepresentations” by failing to conform its content moderation standards – based on what amounts to its general “aspirational” standards of seeking to provide a platform “safe for minors” – to a level defined by Plaintiff. [The Grindr court distinguished] claims based on actual specific and defined contractual promises [from] general aspirational goals regarding platform content moderation

The litigation over “safe” content moderation is decades-old and completely confused.

Third-Party Content

Nowhere in Plaintiff’s Complaint does it accuse Discord of creating the offensive messaging, but rather the Complaint seeks to hold Discord liable for facilitating – or failing to moderate – sexually exploitative offensive messaging created by others. The fact that Discord may have provided the “tools” by which Plaintiff and her alleged abusers exchanged messages, to “carry out what may be unlawful or illicit” does not make Discord a “content provider,” but rather treats Discord as a “publisher” of (offensive) messaging created by third parties.

Implications

A reminder that sexual predation cases involve heartbreaking facts. Section 230 often arises in tragic circumstances.

The Section 230 jurisprudence is coming apart at the seams, as illustrated by this ruling. I think this court got it right and disagreeing courts got it wrong. However, there is now enough precedent on both sides of every issue to vex everyone. This opinion carefully prioritized appellate rulings, which have largely rejected the design defect workarounds to Section 230. However, many more design defect cases are heading to appellate courts across the country, and any appellate deviation in any one of those cases will tear Section 230 even further apart.

Case Citation: Jane Doe v. Discord Inc., 2026 WL 1067574 (N.D. Ohio April 20, 2026). The complaint.

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