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.

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.

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.

The post Section 230 Helps Discord Defeat “Defective Design” Claims Regarding Sexual Predation–Jane Doe v. Discord appeared first on Technology & Marketing Law Blog.

* * *

The court summarizes the state’s claims:

The Commonwealth alleges that Meta Platforms, Inc., and Instagram, LLC (collectively, Meta), engaged in unfair business practices by designing the Instagram platform to induce compulsive use by children, engaged in deceptive business practices by deliberately misleading the public about the safety of the platform, and created a public nuisance by engaging in these unfair and deceptive practices.

Meta moved to dismiss on Section 230 and other grounds. The lower court denied the motion. Meta sought an interlocutory appeal, which the MA Supreme Court permitted, but only to review the Section 230 issue.

In this ruling, the MA Supreme Court unanimously agreed with the lower court that Section 230 didn’t immunize Meta when “the claims allege harm stemming from Meta’s own conduct either by designing a social media platform that capitalizes on the developmental vulnerabilities of children or by affirmatively misleading consumers about the safety of the Instagram platform.”

Section 230

Treated as Publisher

The court starts with its own “plain language” review of what it means to be treated as a publisher. When courts decide to review a 1996 statute from scratch in 2026, after over a thousand Section 230 cases have been decided, that’s usually an indicator that they are engaging in results-oriented decision-making, they don’t like the precedent, and they need another way to reach a different result.

Worse, the court extensively analyzes the word “publisher” but doesn’t say a word about the companion “speaker” term that appears two words later in the statute. This is another indicator of results-oriented decision-making. No matter what the court says “publisher” means, if the court disregards one of the other 26 words that has direct relevance to its meaning, the court is failing its #1 job of reading the damn statute. This omission is extremely embarrassing for the court, and it thoroughly undermines the credibility of the court’s recitation of precedent.

(I would say that the botched statutory reading would be the kind of thing that should be fixed on appeal, but the US Supreme Court’s specialty is selectively reading statutes and precedent to support results-oriented decision-making, so I guess other courts are emboldened to do that too…?)

The court tries to sum up its “plain language” review. Citing the awful Henderson 4th Circuit (which the Fourth Circuit itself has implicitly repudiated), the court says:

These courts have rejected the argument that § 230(c)(1) provides immunity from liability “anytime there is a ‘but-for’ causal relationship between the act of publication and liability,” as it “bears little relation to publisher liability at common law.” Engaging in traditional publishing activity “alone is not enough.”…

(Note: along the way, the court includes quotes of the mockable “get-out-of-jail-free” and “lawless no-mans-land” characterizations of 230, despite my prior debunking of both phrases. Another way the court undermined its own credibility).

Because “the plain meaning of the statute lends itself to competing constructions,” the court then turns to the legislative history for more insight into the meaning of the word “publisher.” This leads to the one-millionth retelling of the Cubby/Stratton Oakmont storyline, with no new payoffs.

Instead, citing Henderson again, the court restates the statutory language in garbled fashion: “Congress intended to immunize interactive computer service providers against claims that would hold them liable as intermediaries for injuries caused by information provided by third-party users of their platforms.”

Relying on that garbled restatement, the court says:

we decline Meta’s invitation to read § 230(c)(1) immunity so broadly as to encompass all claims that implicate publishing activities regardless of whether the claims seek to hold the service provider liable for the content of the information published….

a claim treats a provider as a publisher of information where it meets both the dissemination and content elements.

I’d need to see how Meta argued this, but it feels like the court is rejecting a strawman. Meta publishes third-party content–everyone agrees on that. The service features challenged by the state AG relate to the manner in which Meta presents that third-party content to Meta’s audience. To me, a publisher’s choices of what third-party content to publish and how to publish that third-party content are integrated decisions. In other words, the content selection and presentation decisions are part of the same publication decision. As an analogy, consider a dead-trees newspaper’s decision to publish a story: it is equally part of the newspaper’s editorial prerogative and publication decisions to decide to publish the story at all and to decide if the story should appear on the A1 front page or some interior page; what size typeface to use for the story headline; whether the story runs all on the same page or continues on a later page; etc. As applied to Meta, the decision to vary the delivery timing of new third-party content items (as one example) is just as much of Meta’s publication decision-making process about publishing the third-party content as whether the item will be published at all.

In any case, by saying that 230 only applies to claims that derive from the substance of the third-party content item, the court can disregard a LOT of precedent that applied Section 230 to design defects. The court says the only oppositional precedent is some language in the Social Media Addiction federal decision, which the court denigrates by saying the judge in that case “did not appear to consider the common-law origins of publisher liability or the statute’s legislative history. We are not persuaded by its reasoning.” [Yes, it’s jarring to see Meta cite the CA social media addiction case as support for its position given that how poorly the California cases have been going for Meta.]

Liability Based on Third-Party Content

Claim for unfair business practices. Having said that Section 230 distinguishes the decisions of what content to publish (230-protected) and how to present it (not protected by 230), the court is positioned to uphold all of the claims.

The court says: “The challenged design features (e.g., infinite scroll, autoplay, IVR, and ephemeral content) concern how, whether, and for how long information is published, but the published information itself is not the source of the harm alleged.”

Meta responded that “in the absence of third-party content, the design features could not facilitate addiction in young users.” (My framing: if social media delivers third-party content, what exactly are users “addicted” to?). The court replies:

But the fact that the features require some content to function is not controlling; instead…to satisfy the content element, we look to whether the claim seeks to hold Meta liable for harm stemming from third-party information that it published. Here, the unfair business practices claim does not; the Commonwealth alleges that the features themselves prolong users’ time on the platform, not that any information contained in third-party posts does so. In this sense, the claim is indifferent as to the content published…

the fact that a claim concerns publishing activities, including the use of algorithms in connection with publishing activities, is not enough to bring the claim within the immunity provided by § 230(c)(1)

In a footnote, the court adds: “with respect to the notifications feature, Meta appears to be the information content provider.” But…what content is included in the notifications, and where does it come from?

In a slight piece of good news, the court rejects the state’s Lemmon v. Snap analogy because Lemmon’s “claims did not concern the provider’s publishing activity at all. [Eric’s note: the Lemmon plaintiffs expressly disclaimed all liability based on the content produced by the filter.] By contrast, here, the challenged features are publishing tools that control how Meta publishes content to users of its platform.” I wish more courts would similarly reject the plaintiffs’ many miscitations to Lemmon.

Claim for deceptive business practices. The claim “is based on Meta’s own speech — its allegedly false statements that Instagram is safe and not addictive, and that Meta prioritizes young users’ well-being, despite internal reports and communications suggesting awareness of the harmful effects of Instagram.” There are obvious puffery/opinion defenses that could apply here (see, e.g., the YOLO remand in Bride v. Snap, Inc., 2026 WL 855148 (C.D. Cal. March 16, 2026) that I will eventually blog) but are not at issue in the 230 discussion.

Also, some courts have applied Section 230 to false advertising claims when those claims are fundamentally based on how the service handles its content moderation decisions, such as claims about “safety.” The court doesn’t acknowledge that precedent and instead treats Section 230 as categorically inapplicable to false advertising claims.

Claim for defective age-gating. “the claim focuses on Meta’s own affirmative misstatements about the inaccessibility of its platform to underage users.” Another possible puffery issue.

Nuisance. I’ve previously complained before about courts’ complete undertheorizing of how and why public nuisance claims can apply to social media, and this court doesn’t do any better. In a footnote, here is the court’s entire discussion about Section 230’s application to the public nuisance claim: “Because we conclude that § 230(c)(1) does not bar counts I to III, we also conclude that it does not bar the Commonwealth’s public nuisance claim, which is predicated on the same allegedly unfair and deceptive practices in counts I to III.”

What Happens Next?

Meta could appeal this ruling to the US Supreme Court. That would be a risky move because the US Supreme Court could really go sideways on a decision like this. Also, I’m skeptical the US Supreme Court would grant cert.

Meta could choose to prioritize winning this case on remand on non-230 grounds. For example, the MA Supreme Court validated that Meta’s service features at issue are part of its content publication process. Perhaps that will revitalize Meta’s First Amendment defense?

Whether Meta chooses to appeal or double-down on remand, it’s likely that the CA federal and state court social media addiction cases will have important new developments before any material developments happen in this case. Those developments could swamp the effects of this lawsuit. For example, if Meta loses more bellwether trials in California, the outcome of this case may be comparatively inconsequential.

Quo Vadis Section 230?

This is not a good opinion for Section 230 on several dimensions.

First, as a state supreme court decision, it’s the final word for the Massachusetts state court system (unless the US Supreme Court intervenes). It provides a major beachhead for other courts to follow, both within Massachusetts and beyond.

Second, this court didn’t rely on the Lemmon “design defect” workaround. Instead, it said that the claim doesn’t relate to third-party content unless it’s based on the substance of the third-party content. This provides plaintiffs with another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting (even if they shouldn’t).

Third, as I explained, I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance. Here’s how a plaintiff’s argument could look: “I’m not suing about the third-party content, I’m suing about the design choices that elevated that third-party content over others.” These are literally the same thing in my mind. If this argument works, Section 230 is dead because plaintiffs will always embrace that workaround.

Even if this opinion doesn’t outright eliminate Section 230 in Massachusetts, it’s a sign of how 230 workarounds keep proliferating, contributing to the swiss cheese-ification of Section 230. When the bubbles in the swiss cheese become too large, the cheese wedge lacks structural integrity and falls apart. That is where 230 is heading, if it’s not already there.

Case Citation: Commonwealth v. Meta Platforms, Inc., 497 Mass. 384 (Mass. Supreme Jud. Ct. April 10, 2026)

The post With Opinions Like This, Congress Doesn’t Need to Repeal Section 230–Massachusetts v. Meta appeared first on Technology & Marketing Law Blog.

If this were a framed original of the trading card, the First Sale doctrine should apply. If it were a counterfeit version of the trading card, it would be an obvious legal violation. But this appears to be a photo of the trading card that’s printed. No reasonable buyer would believe this is the original trading card.

Upper Deck nevertheless seeks to enforce its IP rights in the print, both in the Michael Jordan imagery (it received via a license) and its hologram mark (the black shape in the upper left of the print–see the outline from the trademark registration). I believe the original card has actual holographic imagery in the mark’s location to reinforce the original’s authenticity. (Holograms are harder and more expensive to mimic, so they are routinely used as an anti-counterfeiting or security device). So when the reproduction lacks the holographic component of the mark, what does that signify? To me, it’s a strong signal to consumers that the copy isn’t being presented as authentic. Does that demonstrated lack of authenticity have any relevance to the trademark considerations? Unfortunately, the court doesn’t address that issue.

Trademark Dilution

The court says the hologram trademark isn’t sufficiently famous to qualify for dilution protection.

Trademark Infringement

• Mark strength. Even though the hologram mark isn’t famous, it’s a strong mark.
• Proximity of goods. Both offer sports memorabilia.
• Mark similarity. Identical.
• Actual confusion. The court presumes actual confusion from the mark’s identicality, with a bonus gratuitous shoutout to initial interest confusion because why not?
• Marketing channels. Both sell on the Internet.
• Purchaser care. An authentic Michael Jordan trading card depicted in the image above would sell for upwards of $1M. Pixels sells the reprint for $70. Purchasers will note the differences.
• Intent. “the mere existence of [Pixels’] notice-and-takedown policy does not indicate that Pixels has knowledge about the infringing use of the Upper Deck Hologram Mark in particular….Upper Deck has not indicated it attempted to take advantage of Pixels’ notice-and-takedown procedure to notify Pixels’ DMCA agent as to Pixels’ infringing use of the Upper Deck Hologram Mark.” How hard would it have been for Upper Deck to send takedown notices?
• Product line expansion. No evidence.

The court summarizes that 5 factors favor Upper Deck, 2 favor Pixels, and one is neutral. That’s enough to defeat Pixels’ summary judgment motion.

False Advertising

The opinion shifts to Upper Deck’s licensed interests in Michael Jordan’s depiction.

Standing. “a reasonable jury could find that Pixels’ use of Jordan’s likeness in its own similar products could result in a loss of sales of Upper Deck’s products and threatens Upper Deck’s commercial interests.”

False Advertising. I guess Pixels’ advertising claim is that Pixels has the right to market Michael Jordan trading cards when Upper Deck has the exclusive rights? The court says Upper Deck showed enough to survive summary judgment.

False Association. The false association analysis triggers a new round of Sleekcraft factor review, this time focused on Michael Jordan’s trademarks. The result is even more favorable to Upper Deck, so it again defeats Pixels’ summary judgment motion.

Publicity Rights

Pixels challenged Upper Deck’s exclusive right to the Michael Jordan personality. The court says the evidence provided by Upper Deck survives the summary judgment motion.

First Amendment Defense

A Rogers defense goes nowhere. Upper Deck presented “evidence that Pixels used Jordan’s Marks and/or the Upper Deck Hologram Mark in Pixels’ products featuring pictures and photographs displaying Jordan’s likeness. The pictures and photographs of Jordan displayed in Pixels’ products at issue in this action are source-identifying insofar as they contain Jordan’s Marks.”

Section 230

Pixels sought to clean up some of the state law IP and unfair competition law claims per Section 230.

In a footnote, the court acknowledges that Section 230’s IP exception applies to the federal Lanham Act claims but doesn’t apply to state IP claims.

The court summarizes: “while advertising and curating content on websites constitute publishing conduct that can be immunized under Subsection (c)(1), the sale and distribution of physical products does not.” Thus:

Pixels is entitled to Section 230 immunity where Upper Deck seeks to hold it accountable for the advertisement of allegedly infringing goods, or for creating website tools that allow users to search and view allegedly infringing goods based on images uploaded by third parties. However, Pixels is not entitled to Section 230 immunity to Upper Deck’s California state law claims where Upper Deck seeks to hold Pixels accountable for manufacturing and selling the allegedly infringing products listed for sale on its website (e.g., contracting with vendors to manufacture and ship illicit products)

As applied: “Pixels does not create the illicit images of products uploaded and displayed on its site, and Pixels’ website search engine and content filtering tools do not contribute to the creation of those products.” However, Section 230 doesn’t apply to “Pixels’ involvement in offline manufacturing or selling physical prints containing infringing images (e.g., hiring and coordinating with print and shipping vendors, facilitating product returns, offering a money-back guarantee).” It seems pretty straightforward that Section 230 wouldn’t apply to offline activities, no?

* * *

This case raises many complex issues. In addition to the hologram mark issue, this case raises questions about the scope of merchandising rights, the permissibility of displaying historical items such as old sports trading cards, print-on-demand manufacturers’ liability for vendor uploads, and more. The court mostly sidesteps all of these legal complexities. Instead, the opinion narrowly focuses on more technical aspects, such as whether the hologram mark’s shape could be infringed even when it’s being accurately displayed in historical context.

The court’s rejection of most of Pixels.com’s summary judgment motion seems to position Upper Deck’s claims for a trial, unless the parties can figure out a settlement beforehand.

Case Citation: The Upper Deck Co. v. Pixels.com LLC, 2026 WL 776227 (S.D. Cal. March 19, 2026). This is an amended version of the opinion issued on March 6. As the court explains in the first footnote, the prior opinion had errors that the court needed to correct.

Related posts

* DMCA 512(c) Helps Redbubble Defeats Copyright Lawsuit–Wallshoppe v. Redbubble
* Print-on-Demand Service Defeats Fish Illustrator’s Copyright Claim–Tomelleri v. Sunfrog
* Print-on-Demand Services Face More Legal Woes–Canvasfish v. Pixels
* Atari’s Lawsuit Against a Print-on-Demand Service Fizzles Out–Atari v. Printify
* Ninth Circuit Highlights the Messy Law of Contributory Trademark Infringement Online–YYGM v. RedBubble
* RedBubble Gets Another Favorable Ruling–YZ Productions v. RedBubble
* IP Lawsuits Against Print-on-Demand Vendors Continue to Vex the Courts–OSU v. Redbubble & More
* Another Tough Ruling for Print-on-Demand Vendors–Sid Avery v. Pixels
* Print-on-Demand Vendor Doesn’t Qualify for DMCA Safe Harbor–Feingold v. RageOn
* CreateSpace Isn’t Liable for Publishing Allegedly Infringing Uploaded Book–King v. Amazon
* More Evidence That Print-on-Demand Vendors May Be Doomed–Greg Young Publishing v. Zazzle
* Section 230 Doesn’t Protect Print-on-Demand Vendor–Atari v. Sunfrog
* Online Marketplace Defeats Trademark Suit Because It’s Not the “Seller”–OSU v. Redbubble
* Zazzle Loses Copyright Jury Verdict, and That’s Bad News for Print-on-Demand Publishers–Greg Young Publishing v. Zazzle
* Trademark Injunction Issued Against Print-on-Demand Website–Harley Davidson v. SunFrog
* DMCA Safe Harbor Doesn’t Protect Zazzle’s Printing of Physical Items–Greg Young Publishing v. Zazzle
* CafePress May Not Qualify For 512 Safe Harbor – Gardner v. CafePress
* Cafepress Suffers Potentially Significant Trademark Loss for Users’ Uploaded Designs
* Life May Be “Rad,” But This Trademark Lawsuit Isn’t–Williams v. CafePress.com
* Print-on-Demand “Publisher” Isn’t Liable for Book Contents–Sandler v. Calcagni
* Griper Selling Anti-Walmart Items Through CafePress Doesn’t Infringe or Dilute–Smith v. Wal-Mart
* CaféPress Denied 230 Motion to Dismiss–Curran v. Amazon

The post What Does a Hologram Trademark Signify When the Hologram Isn’t There?–Upper Deck v. Pixels appeared first on Technology & Marketing Law Blog.

Weiss v. Google LLC, 2026 WL 733788 (Cal. App. Ct. March 16, 2026)

Weiss’ business started running financial services ads on Google in 2015. Google suspended the ads multiple times, until Google issued a final suspension in 2024. The court says Section 230 protects Google’s suspension decisions.

The court starts with standard context-setting: “California’s appellate courts and federal courts have also generally interpreted section 230 to confer broad immunity on interactive computer services.”

The court continues:

Weiss seeks to adjudicate Google’s characterization of his business and its decision to suspend its ads. However, this conduct, i.e., Google’s “refusal to allow certain content on its platform,” is “typical publisher conduct protected by section 230” regardless of the reason for that refusal….

even if Google’s characterization of Weiss’s advertisements does not align with Weiss’s characterization, section 230 still affords Google immunity from liability for its decision to suspend his content…

all the content Weiss claims Google wrongfully suspended was admittedly created by Weiss, not Google…

Google’s determination that Weiss’s ads violated its general policies is not equivalent to contributing to the ads’ content.

In a footnote, the court adds: “Weiss seeks to hold Google liable for its enforcement of its own general policies, rather than a breach of a specific promise.”

When the dust settles, this becomes just another failed lawsuit over account terminations and content removals.

A reminder of the content moderation dilemma Google faces here. A few courts have said that Facebook doesn’t qualify for Section 230 protection for running scammy ads (e.g., Forrest v. Facebook). As a result, Google has good reason to suspend Weiss’ ads to manage its own liability exposure. At the same time, if Weiss succeeded with his claims here, then Google would have been potentially liable for removing ads based on Google’s fears that they are scammy. This would force Google to deploy a Goldilocks version of content moderation: Google would have to get its ad removal policy “just right,” with potential liability for mistakes in either direction. An impossible challenge.

Thompson v. The Meet Group, 2026 WL 730134 (E.D. Pa. March 16, 2026)

Thompson said Tagged deactivated his livestreaming account and stole $10k from him.

For reasons that aren’t obvious to me, Tagged defended on Section 230(c)(2)(A) grounds instead of 230(c)(1). Maybe this has something to do with trying to navigate around the abysmal Anderson v. TikTok case? EDPa courts are bound by that decision.

The court says Tagged can’t establish the 230(c)(2)(A) defense elements on a motion to dismiss: “application of CDA immunity in this case requires assessment of facts that are not in the pleadings—such as the reason why Thompson’s account was disabled and the content of Thompson’s posts.” Also, Thompson’s allegations of theft might defeat 230(c)(2)(A)’s good faith prerequisite. Cites to Smith v. TRUSTe and e-ventures v. Google.

No matter, the case fails anyway. (Another example of Section 230 not being the only reason why lawsuits lose). The court says the plaintiff had no property interest in his social media account that could be converted (cite to Eagle v. Morgan). The plaintiff’s TOS breach claim fails multiple ways, including the TOS’s reservation of termination rights and damages waiver.

So this becomes yet another failed lawsuit over account terminations, just not due to Section 230. You already know this, but if you’re a defendant in these cases, you should be focusing on 230(c)(1), not 230(c)(2)(A).

Gehringer v. Ancestry.com Operations Inc., 2026 WL 734526 (N.D. Cal. March 16, 2026)

Plaintiffs are individuals who have not subscribed to the Ancestry.com service and have not consented to the use of their name or photograph. They allege Ancestry not only includes their yearbook information on a searchable database, but also utilizes their likenesses as part of advertisements for Ancestry.com services…

Plaintiffs contend Ancestry used their likeness in three forms of “advertising”: 1) publication of the yearbook information on a database that contains a paywall for certain features; 2) dissemination of emails to potential Ancestry.com subscribers, noting Ancestry Hints® can expand their family tree, and using the names and images of Plaintiffs as examples; and 3) an Ancestry free trial program that allows potential subscribers to access Plaintiffs’ yearbook information for a limited time.

The court nixes claims over category #1 and #3 ads due to copyright preemption.

As for the category #2 ads:

Plaintiffs allege Ancestry crafted email advertisements that included their likenesses to encourage potential customers to subscribe to Ancestry’s service. The email advertisements were not created by a third-party user of Ancestry.com—Ancestry authored the content, and as such, it is “responsible, in whole or in part, for the creation” of that offending content. To avoid this conclusion, Ancestry attempts to recast the allegations in the First Amended Complaint, asserting Ancestry merely “republish[es] yearbook photos taken and first published by Esperanza High School.” But as the screenshots in the Complaint confirm, the emails sent by Ancestry to prospective users include far more than republished images of Plaintiffs; they incorporate those images into an advertisement for the Ancestry Hints® functionality and Ancestry’s subscription service. Drawing all inferences in Plaintiffs’ favor, Section 230 does not immunize Ancestry against liability for the content of the alleged email advertisements

Notice that Ancestry’s ad creation practices go further than Facebook’s sponsored stories, which also didn’t qualify for Section 230 protection.

State v. Sharak, 2026 WI 4 (Wis. Supreme Ct. Feb. 24, 2026)

Google scanned Sharak’s Google Photo uploads, identified what it thought was CSAM, and submitted a CyberTip. Sharak argued that Google was conducting the search on the state’s behalf. The court disagrees and upholds Sharak’s conviction.

That isn’t unusual. What’s more unusual is the court’s discussion of Section 230. “Rauch Sharak argues that [Section 230(c)(2)’s safe harbor] encourages ESPs to scan for CSAM by granting immunity to ESPs that moderate content and creating civil and criminal liability if ESPs do not scan for CSAM.”

The court responds:

Though § 230(c) may grant immunity to ESPs that choose to scan for CSAM, it does not require, reward, or incentivize scanning for CSAM in the first place. Moreover, § 230(c)(2)(A) grants immunity for “any action voluntarily taken in good faith to restrict access to” obscene material, which sweeps far more broadly than would be required to induce Google’s CSAM scan at issue here….

Even if the statutes encourage Google to scan for CSAM or provide a law-enforcement purpose, Rauch Sharak has not shown that they are enough to turn Google into an instrument or agent of the government.

Alice Rosenblum v. Passes Inc., 2026 WL 711837 (C.D. Cal. Feb. 3, 2026)

[The fact allegations are based on the court’s summary of the complaint.] Passes is a competitor to OnlyFans. Unlike its rivals, Passes allows 15-17 year olds to create accounts with parental consent. Guo is the CEO, and Celestin is a content acquisition specialist. At Guo’s direction, Celestin personally reached out to 17-year-old Alice Rosenblum to create a Passes account. Celestin did a photoshoot of Rosenblum and (with Guo’s help) created a Passes account for her without requiring parental consent.

“Over the next month, while Plaintiff was still 17 years old, Celestin and Ginoza [another Passes employee] allegedly directed Plaintiff to create sexually explicit images and videos of herself….the FAC provides over 14 examples of child sexual abuse material (“CSAM”) involving Plaintiff, being marketed on the Passes platform for $69 to $4,000. Furthermore, Passes agents posing as Plaintiff allegedly communicated via direct message to “big spenders” to continue to market and sell CSAM involving Plaintiff.”

The court rejects Passes’ and Guo’s Section 230 defense:

Section 230 immunity plainly does not apply to Plaintiff’s claims. To be sure, Plaintiff does largely seek to hold Passes Defendants liable as providers of an interactive computer service, and several allegations treat Passes as a publisher, as they involve Passes’ distribution of CSAM involving Plaintiff…Plaintiff alleges that Passes and its agents were directly responsible for the creation and portrayal of the CSAM on the Passes platform: Plaintiff alleges that Celestin, acting as an agent of Passes, personally took at least one photo of Plaintiff which was uploaded to Passes, and further instructed her to create specific photographs and videos and upload them to Passes, which he later marketed under specific captions and sold. Plaintiff further alleges that Passes itself hosted a banner featuring a sexually explicit photo of Plaintiff, which marketed CSAM involving Plaintiff. Plaintiff therefore seeks to hold Passes liable for harm allegedly arising out of its own creation of harmful content.

Passes claimed that Celestin and Ginoza were third parties, but “As alleged, Celestin was
not merely another third-party user of Passes; rather, he acted as an agent and employee of Passes.” Cite to Quinteros.

The court summarizes:

Section 230 immunity does not apply to Passes, a platform which has allegedly, through its agents, deliberately created, marketed, and sold illegal content, acting as an “information content provider” that uses its own “interactive computer service.”

In a footnote, the court adds regarding Guo: “Plaintiff’s allegation that Guo encouraged Plaintiff over the phone to post content, which supports Plaintiff’s claims for IIED and California Civil Code § 52.5, does not hold Guo accountable for Passes’ publishing activity.”

Doe v. X Corp., 2026 WL 772384 (N.D. Tex. Feb. 25, 2026)

“A third party copied commercial pornographic content from Plaintiff’s OnlyFans and studio-based productions and uploaded it to X without his consent, violating the OnlyFans terms and conditions and the studios’ licensing agreements.” He sued pursuant to 15 U.S.C. § 6851(b)(1)(A), a private right of action for nonconsensual production of intimate visual imagery. Doe produced the porn consensually, but he claims the restrictions extended to nonconsensual distribution.

The court says X qualifies for Section 230. Doe responded that he owned the IP in the works, so the IP exception applies. The court says:

The [IP] exception applies only when the claims arise from a law directly implicating intellectual property rights, not merely when intellectual property is involved in the claim. And the statute under which Plaintiff sues—§ 6851—is not an intellectual property law. Rather, it is concerned with “whether the depicted individual consented to a specific disclosure of an intimate visual depiction—regardless who holds the copyright to the image.” Thus, § 6851 creates a privacy-based tort right of action, not an intellectual-property based one.

The boundary between privacy and IP laws remains amorphous–increasingly so with all of the concerns about “deepfakes,” “virtual replicas,” and other AI-related regulations that use privacy framing to create what look like sui generis IP rights. This could be a good student paper topic.

For more discussion of the IP exception to Section 230, see this article.

Teague v. Google, 2026 WL 746996 (D. S.D. March 17, 2026)

Plaintiff claims Google committed defamation based upon the fact that “people think I raped [redacted]. This case (sic) been dismissed in 2021 but it still show (sic) on Google and caused me to (sic) threaten and attacked a few times.” Plaintiff further claims his image is on Google and it is difficult to get a job because the rape charges still appear on Google.”…

Google is not a “publisher or speaker” under the CDA and therefore “cannot be liable under any state-law theory to the persons harmed by the allegedly defamatory material.”

Google is immune from suit for defamation claims arising out of other content providers’ posts on the internet.

The post Section 230’s Application to Account Terminations, CSAM, and More appeared first on Technology & Marketing Law Blog.

The plaintiff sued in state court, the defendant removed to federal court, and in this ruling, the court remands the case back to state court because the plaintiff lacks Article III standing. This reminded me of the Yelp law litigation genre, where the cases routinely bounce from federal court because they are such trash that they lack Article III standing. Getting a case remanded to state court because the case is so terrible seems like a short-term “victory” for plaintiffs.

* * *

The court summarizes the key evidence of the lawsuit’s lack of merit:

[Defendant’s] search confirmed that Defendants received three leads from online searches for the terms “Brothers Buy Homes,” or “Brothers Buys Homes” between January 1, 2024, and December 31, 2024. All three leads occurred when the keyword insertion feature was turned off; thus, Blue Bay’s trademark never appeared in any of the three ads that generated leads. Blue Bay’s Operations Manager, Mike Briener, admitted there would not be any confusion with potential customers if the keyword insertion feature was turned off and Blue Bay’s trademark name did not appear in Defendants’ ad. Defendants therefore did not receive any revenue, profit, or business opportunity from any Google Ads containing Blue Bay’s name.

Let’s go over that the evidence again:

(1) The plaintiff is suing over 3 clicks. That alone is almost certainly financially irrational.

(2) Those clicks came from keyword ads without the plaintiff’s trademark in the ad copy.

(3) The plaintiff concedes those clicks aren’t attributable to consumer confusion. Briener’s concession may sound like a big deal, but he’s just acknowledging black letter law. Courts have repeatedly and unhesitatingly rejected trademark lawsuits over competitive keyword ads that don’t reference the TM in the ad copy. See, e.g., the Lerner & Rowe case.

(4) Defendants “did not receive any revenue, profit, or business opportunity from any Google Ads containing Blue Bay’s name.”

Why is this case still going? What are we even doing here?

The court recapitulates why this lawsuit is so meritless:

Defendants’ evidence shows that Defendants have not misrepresented themselves as Blue Bay, Defendants did not use Blue Bay’s trademark to generate leads by confusing consumers, Defendants did not do business with consumers who mistook Defendants as Blue Bay, and Blue Bay has not lost money from Defendants’ actions.

Sounds like this case is primed for dismissal. However, unfortunately for the defendants, the court resolves these problems on Article III standing rather than substantively dismissing the case for lack of merit. The court says it’s required to remand the case due to the Article III problem. This case is already clearly dead, but I guess the funeral will be a bit delayed. It seems like an excellent candidate for a trademark fee shift to the defendant.

Case Citation: Blue Bay Ventures LLC v. John Buys Bay Homes LLC, 2026 WL 710398 (N.D. Cal. March 13, 2026)

Personnel note: the plaintiff’s lawyer is Steffanie Danielle Stelnick, whose website self-styles herself as “the Real Estate Queen.” Her bio explains: “she earned her title as the Real Estate Queen helping clients with their full service real estate needs year after year.”

BONUS: David Penner MD PLLC v. Clear TMS+ PLLC, 2026 WL 838294 (W.D. Wash. March 26, 2026): “Clear argues persuasively that its purchasing or using a “keyword” is not itself a trademark infringement.”

* * *

More Posts About Keyword Advertising

* Post-Mortem of a Misguided Logo Trademark Lawsuit–LegalForce v. Internet Brands
* The Initial Interest Confusion Doctrine Refuses to Die
* Court Rejects Initial Interest Confusion Claims for Competitive Keyword Ads–Regalo v. Aborder
* Lawsuits Over Competitive Keyword Advertising Are Still Stupid–NRRM v. American Dream Auto Protect
* NJ Supreme Court Blesses Lawyers’ Competitive Keyword Ads (With a Baffling Caveat)
* Ninth Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword Ads–Lerner & Rowe v. Brown Engstrand
* Second Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword Advertising
* Catching Up on Two Keyword Ad Cases
* Competitor Isn’t Responsible for Google Knowledge Panel’s Contents–International Star Registry v. RGIFTS
* TIL: “Texas Tamale” Is an Enforceable Trademark–Texas Tamale v. CPUSA2
* Internal Search Results Aren’t Trademark Infringing–PEM v. Peninsula
* When Do Inbound Call Logs Show Consumer Confusion?–Adler v McNeil
* Court Denies Injunction in Competitive Keyword Ad Lawsuit–Nursing CE Central v. Colibri
* Competitive Keyword Ad Lawsuit Fails…Despite 236 Potentially Confused Customers–Lerner & Rowe v. Brown Engstrand
* More on Law Firms and Competitive Keyword Ads–Nicolet Law v. Bye, Goff
* Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. Allied Modular
* Griper’s Keyword Ads May Constitute False Advertising (Huh?)–LoanStreet v. Troia
* Trademark Owner Fucks Around With Keyword Ad Case & Finds Out–Las Vegas Skydiving v. Groupon
* 1-800 Contacts Loses YET ANOTHER Trademark Lawsuit Over Competitive Keyword Ads–1-800 Contacts v. Warby Parker
* Court Dismisses Trademark Claims Over Internal Search Results–Las Vegas Skydiving v. Groupon
* Georgia Supreme Court Blesses Google’s Keyword Ad Sales–Edible IP v. Google
* Competitive Keyword Advertising Claim Fails–Reflex Media v. Luxy
* Think Keyword Metatags Are Dead? They Are (Except in Court)–Reflex v. Luxy
* Fifth Circuit Says Keyword Ads Could Contribute to Initial Interest Confusion (UGH)–Adler v. McNeil
* Google’s Search Disambiguation Doesn’t Create Initial Interest Confusion–Aliign v. lululemon
* Ohio Bans Competitive Keyword Advertising by Lawyers
* Want to Engage in Anti-Competitive Trademark Bullying? Second Circuit Says: Great, Have a Nice Day!–1-800 Contacts v. FTC
* Selling Keyword Ads Isn’t Theft or Conversion–Edible IP v. Google
* Competitive Keyword Advertising Still Isn’t Trademark Infringement, Unless…. –Adler v. Reyes & Adler v. McNeil
* Three Keyword Advertising Decisions in a Week, and the Trademark Owners Lost Them All
* Competitor Gets Pyrrhic Victory in False Advertising Suit Over Search Ads–Harbor Breeze v. Newport Fishing
* IP/Internet/Antitrust Professor Amicus Brief in 1-800 Contacts v. FTC
* New Jersey Attorney Ethics Opinion Blesses Competitive Keyword Advertising (…or Does It?)
* Another Competitive Keyword Advertising Lawsuit Fails–Dr. Greenberg v. Perfect Body Image
* The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads
* Rounding Up Three Recent Keyword Advertising Cases–Comphy v. Amazon & More
* Do Adjacent Organic Search Results Constitute Trademark Infringement? Of Course Not…But…–America CAN! v. CDF
* The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising
* Your Periodic Reminder That Keyword Ad Lawsuits Are Stupid–Passport Health v. Avance
* Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts
* Another Failed Trademark Suit Over Competitive Keyword Advertising–JIVE v. Wine Racks America
* Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic
* The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts)
* Another Court Says Competitive Keyword Advertising Doesn’t Cause Confusion
* Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot
* Brief Roundup of Three Keyword Advertising Lawsuit Developments
* Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions
* 1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts
* FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts
* Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon
* More Evidence Why Keyword Advertising Litigation Is Waning
* Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot
* AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual
* FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising
* Competitive Keyword Advertising Lawsuit Will Go To A Jury–Edible Arrangements v. Provide Commerce
* Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers
* Court Beats Down Another Competitive Keyword Advertising Lawsuit–Beast Sports v. BPI
* Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert
* Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law
* Confusion From Competitive Keyword Advertising? Fuhgeddaboudit
* Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions
* Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising
* Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal
* Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC
* Damages from Competitive Keyword Advertising Are “Vanishingly Small”
* More Defendants Win Keyword Advertising Lawsuits
* Another Keyword Advertising Lawsuit Fails Badly
* Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)
* Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue
* Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!
* Florida Allows Competitive Keyword Advertising By Lawyers
* Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid
* Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman
* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners
* Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners
* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers
* More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide
* Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law
* Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law
* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights
* With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally
* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie
* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit
* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue
* Google Defeats Trademark Challenge to Its AdWords Service
* Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown

The post Another Reminder: Lawsuits Over Competitive Keyword Ads Are Stupid appeared first on Technology & Marketing Law Blog.

1) This opinion is by a TAFS judge (Trump-appointed, Federalist Society).

2) The right of publicity doctrine is incoherent, and this opinion illustrates that.

* * *

Yardi operates PropertyShark, which publishes a commercial database of searchable real property ownership records. Much (all?) of its data comes from the government. “PropertyShark operates on a free-trial basis by offering users an enticing sample of the full product to earn paid business.” Searchers can get access to one property report for free. After that, searchers are upsold to buy additional reports or a periodic subscription. The upsell sales pitch only begins after the searcher executes a search.

The plaintiffs are Ohio property owners. The reports on their properties “include their names, property address (which, in both cases, is also their home address), property purchase price, tax details, and other information about their Ohio property. Neither plaintiff consented to PropertyShark using their information. Nor would they have consented if asked.” They sued PropertyShark for publicity rights violations.

Huh? How can the publication of government records in a commercial database ever be a publicity rights violation? The purported rationale: a free trial of a commercial database of editorial content converts the records into ads during the trial, but the records revert back to their editorial content status when the trial ends. If this doesn’t make any sense to you, you are not alone. But there is a growing line of cases predicated on this premise, including the yearbook database and genealogy database cases. (Indeed, you might trace the rationale’s lineage to Facebook’s sponsored stories and the Fraley v. Facebook case from 15 years). Because the courts have been open to publicity rights claims in the yearbook and genealogy cases, the plaintiffs are proliferating the litigation to other free-trial/freemium commercial databases. Why wouldn’t they?

The court defines the elements of a publicity rights claim as “(1) unauthorized use of (2) a person’s commercially valuable name or likeness for (3) commercial purpose.” These elements are amorphous and flexible, like pretty much every other aspect of the publicity rights doctrine.

The court says that the “plaintiffs’ claims fail on the commercial-value prong”:

the commercial-value requirement laid down by Ohio courts saves businesses from having to blanch their advertisements of all likenesses lest they invade the owners’ right of publicity. Rather, it ensures that only those businesses are liable whose “purpose” in including the likeness is to take advantage of the “commercial or other values” associated with the likeness… if an ad element is present as a mere incident to the real star of the show, it’s not directly of “use” or “benefit” to the advertiser. [Huh?]

This passage implies that there is some kind of de minimis exception to publicity rights claims over ads, even if the person is identifiable. That doesn’t sound right to me.

So when does a name have commercial value sufficient to trigger publicity rights protections? The court says “a plaintiff needn’t possess widespread fame to have a commercially valuable persona—recognition within a subgroup suffice.”

This is an obviously problematic standard because it creates slippery slopes about what subgroups count and how much recognition is sufficient in those subgroups. These kinds of indeterminate standards are a bonanza to plaintiffs because they basically invite haggling. The court gets away with this standard because:

Not a single allegation in the complaint supports a finding that LaFleur’s or Grose’s (or any putative class member’s) name carries any recognition in any subgroup. Absent those kinds of allegations, we’re left to conclude that their names appeared only incidentally alongside PropertyShark’s invitations to the advertised service, in the sense that nothing about LaFleur or Grose as LaFleur or Grose adds value, in the user’s eyes.

So the bad pleadings in this case make it easier to sidestep the obviously problematic implications of the court’s standards.

The court rejects the plaintiff’s workaround that their names must have had commercial value because a commercial entity used them. The court distinguishes Wilson v. Ancestry because:

Ancestry.com used the plaintiff’s persona in a more targeted way than Yardi does: by sending personalized emails with the plaintiff’s information to prospective customers “who may be related” to the plaintiff, rather than appending a solicitation to subscribe onto any person’s property report in an untargeted way. So Ancestry.com affirmatively targeted its advertisements to people who might be related to the persona used in the advertisement, whereas PropertyShark passively invites users to become paying customers irrespective of which persona the user sees. In Ancestry, unlike here, the name itself was part of the ad’s value proposition.

That phrase “passively invites” sounds like an oxymoron.

* * *

To me, much of publicity rights law feels like Calvinball. For example, once we accept that free-trial offerings are “advertisements” that can turn editorial content items (such as government records) into content regulated by the right of publicity, I feel like we’ve already rigged the game. And saying that the plaintiffs’ names were commercially worthless, but other names might have “commercial value,” ensures many avoidable fights to figure out where those lines may be. None of this is rational or makes sense. We ought to take a giant step back and rethink the goals of the publicity rights doctrine, rather than proliferate increasingly haphazard legal standards incrementally.

Case Citation: LaFleur v. Yardi Systems, Inc., 26a0055p.06 (6th Cir. Feb. 27, 2026). The district court opinion.

Prior blog posts on Yearbook and Genealogy Cases

• 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 Free-Trial Commercial Database Defeats Publicity Rights Claim–LaFleur v. Yardi appeared first on Technology & Marketing Law Blog.

This case involves the following TCPA restrictions (cleaned up): (1) “to make any call using an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service,” or (2) “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message.” These restrictions depend on the statutory phrases “call,” “voice,” and “make”/”initiate” a voice call.

The Republican National Committee texted Howard’s cellphone with the following message:

As you can see, the text message included a video file that didn’t play unless the recipient pressed the play button. Howard, the plaintiff, says he never signed up for RNC’s missives. Did the RNC make/initiate a “voice” “call” by sending Ivanka’s video? The majority says no and dismisses the case.

The majority says that a “call” includes a text message. This reiterates long-standing Ninth Circuit precedent (the Satterfield case from 2009).

[In a footnote, the majority adds: “The mere fact that a phone can be set to shut off notifications for text messages does not mean that text messages do not, as a class, fall within the ordinary understanding of a potentially privacy-intruding “call.” A classic telephone call, which typically results in ringing of the phone, remains a “call” even if the particular user has his or her ringer turned off.”]

Citing a 2023 opinion, the majority says “voice” doesn’t include any silent communications.

Putting this together, the majority says the applicable provisions “only limit the use of artificial or prerecorded voices to begin a call.” The statutory concerns about privacy are implicated only when “the person called, upon being reached, is immediately and involuntarily subjected to the nuisance of listening to an artificial or prerecorded voice.” Thus, a voicemail with a prerecorded message implicates the provision, but if a live person asks the call recipient if it’s OK to play a prerecorded message, then the statutory requirements are satisfied.

The dissent calls out the majority for rewriting the statute, i.e., changing the statutory precondition of making or initiating a call into beginning the call.

As applied to Howard, the majority says:

The call at issue here—the text message and accompanying video file—included an artificial or prerecorded voice. But like a telephone call in which a live caller offers to play an artificial or prerecorded voice to the recipient, the RNC’s text message was made or initiated by its textual content and its silent inclusion of a ready-to-play video file….Because Howard’s voluntary engagement with the video file was a necessary intervening action between the RNC’s initial contact and the playing of the video’s artificial or prerecorded voice, any subsequent playing and hearing of the prerecorded voice in the video file is not included within the means by which the RNC made or initiated the “call.”

In a footnote, the majority adds: “We recognize that an individual’s phone settings could conceivably be changed so that, upon viewing a text message containing certain video files, the file would automatically begin to play. That would not change the ultimate result” because configuring that setting would constitute the recipient’s legal consent to play the file.

Implications

The TCPA Has Aged Poorly. The TCPA encoded assumptions about how the telephone system worked in the early 1990s. Obviously, the telephone system circa 2026 works very, very differently.

In the early 1990s, text messages didn’t really exist (though people used the pager system for similar functions), so the TCPA was not designed to cover text messages. Then, as courts extended the TCPA to that new medium, the courts didn’t contemplate that text messages might include multi-media components. This is why are applying a statute designed to regulate incoming telephone calls to a system for delivering video files. None of it makes sense.

In my view, every medium-exceptionalist statute ultimately collapses over time due to medium convergence. Congress misassumed that it could precisely define a telephone call that would accommodate changes in technology and social practices. As my long-standing idiom says, “if you can’t define it, you can’t regulate it.” Keep that in mind with the “social media” exceptionalist laws.

Was the TCPA the Right Tool for this Issue? What other claims could Howard have tried beyond the TCPA? The trespass to chattels claims come immediately to mind.

Political Advertising is Out-of-Control. Anti-advertising statutes routinely exclude political advertising. This makes sense for two reasons.

First, political advertising may receive greater constitutional protection than commercial advertising. Excluding political advertising is a way of bolstering the potential constitutional survivability of the statute.

Second, and I think more importantly, politicians don’t want to restrict their own power. “Do as I say, not as I do.” Today, many politicians are inveterate direct marketers, flooding their supporters (and sometimes their non-supporters) with requests for contributions. Why would they give up that stream of cash flows?

(My egoldman@gmail.com email address is often signed up for political spam by other “E. Goldman”s who are bad at typing, so I’ve seen how voracious political marketers can be).

If politicians really are concerned about marketer overgrazing, they ought to clean their own house–by statute, if necessary.

Case Citation: Howard v. Republican National Committee, 2026 WL 90273 (9th Cir. Jan. 13, 2026)

[Personal note: in 2025, my wife and I FINALLY cut our landline phone service. We now rely exclusively on our cellphones for personal phone service. I know that we’re late adopters to this approach. I don’t miss the landline at all. It was a magnet for telemarketers violating the TCPA. My cellphone number gets occasional telemarketing and text message spam, but it isn’t out of control…yet.]

The post What Does It Mean to Make a Voice Call in a Post-Telephone World?–Howard v. RNC appeared first on Technology & Marketing Law Blog.