Anyone following the debate over section 230 immunity for social-media platforms should be interested in the Third Circuit’s ruling on Tuesday in Anderson v. TikTok, Inc.—both the majority opinion by Judge Patty Shwartz and the separate opinion (concurring in part, dissenting in part) by Judge Paul Matey.
The case arises from horrific (alleged) facts. TikTok, via its algorithm, recommended to 10-year-old Nylah Anderson a video that depicted a “Blackout Challenge,” which (as Shwartz puts it) “encourages viewers to record themselves engaging in acts of self-asphyxiation.” After watching the video, Nylah unintentionally hanged herself. Her mother sued TikTok for violations of state law, but the district court held that section 230 (added in 1996 to the Communications Act of 1934) gave TikTok immunity from the claims.
In her majority opinion, Judge Shwartz explains that section 230 immunizes social-media platforms only to the extent that they are sued for someone else’s expressive activity or content (third-party speech), not to the extent that they are sued for their own expressive activity or content (first-party speech). The Supreme Courrt’s recent “observations [in Moody v. NetChoice (2024)] that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others’ content via their expressive algorithms” means that such activity “amounts to first-party speech” that is not protected by section 230. So the district court should have allowed Nylah’s mother to pursue claims based on TikTok’s recommendations.
Judge Matey, in his very engaging 20-page separate opinion, goes further. He would hold that section 230 provides TikTok immunity from suit “for hosting videos created and uploaded by third parties” but that it does not shield TikTok for its “knowing distribution and targeted recommendation of videos it knew could be harmful.” He provides a comprehensive history of section 230 and argues that courts, from the outset, read section 230 too broadly to bar not just publisher (or hosting) liability but also distributor liability.