Ninth Circuit Rewrites Section 230 To Remove The Part That Actually Mattered

Legal Issues

from the the-ducks-are-in-a-biting-mood dept

For all the talk of “reforming” or “repealing” Section 230 in Congress, the fact is that the courts over the past three or four years have effectively chipped away so steadily at the law that it’s lost a significant chunk of its usefulness. The latest comes from the Ninth Circuit, which ruled earlier this week that Section 230 is not, in fact, an immunity from lawsuit, but merely a defense against liability. This may sound like a procedural technicality — and, indeed, the coverage of this case from the likes of Reuters covers it as a boring procedural story — but it’s a huge deal.

To get there, the panel had to rewrite the history of Section 230 and wave off a whole stack of its own prior rulings as either sloppy word choice or mere dicta.

To understand why this ruling is such a big deal, you first have to understand Section 230’s true benefit: it would get bogus cases tossed at the earliest moment. This is the entire key to why Section 230 is important. The point of Section 230 is to put the liability on the party actually violating the law — which would be the creator of the content, and not the intermediary tool they use to host/distribute that content. But the mechanism used to protect speech is that it gets the cases against intermediaries dismissed very early (aggrieved parties can still sue the actual speakers).

If it didn’t do this, the vast majority of the benefits of Section 230 would be lost. Indeed, in one of the many early Section 230 cases, the Ninth Circuit’s Alex Kozinski colorfully described why Section 230 immunity was so important in the famous Roommates case:

Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties…

Every bit of that bolded section is important — and it’s what the court is now ignoring. First, it’s Kozinski not just calling out that Section 230 provides “immunity” but that without it, we would “cut the heart out of Section 230” by “forcing websites to face death by ten thousand duck-bites.” Kozinski was exactly correct, and Section 230’s authors, Ron Wyden and Chris Cox, have said he got it right (I was at a conference years ago where both Cox and Kozinski were present, and when Cox said this interpretation was correct, Kozinski made a joke to the effect that it wasn’t often that a priest got word directly from God that his interpretation of the scriptures was correct).

The operative aspect of 230 is that it’s an immunity that gets rid of those cases early. Because without that, the mere threat of litigation would force many websites to simply remove content to avoid the cost of going through litigation. That’s the duck bites part of this.

And part of what’s important about it being an immunity is that if the district court refuses to dismiss the case on Section 230 grounds, you can immediately appeal that (“an interlocutory appeal”) to the appeals court to say that the district court got this wrong… rather than having to go through the entire litigation process (the thing you’re supposed to be immune from) and then telling an appeals court about the error. By not allowing an interlocutory appeal, it would do away with the element of Section 230 that makes it so effective.

Yet, on Monday, the same Ninth Circuit basically said “eh… nope.” Yes, the ruling was specifically procedural, but it was procedural on that point. Meta and TikTok — and, by extension, every other company facing these suits — have to get pecked to death by ducks first, and only afterwards can they tell an appeals court they never should have been pecked at all. The “procedural” rejection by the Ninth Circuit means that more than 3,000 lawsuits filed against these companies can move forward. It’s not (yet) the full ten thousand duck bites Kozinski warned about, but it’s in the ballpark. And we’re already seeing those duck bites in action.

What’s incredible, though, is just how confused the panel is about all of this. Judge Jacqueline Nguyen, writing for the court, starts by getting the history of Section 230 wrong:

The drafting history adds weight to the view that Congress employed a belt and suspenders approach. In the House bill, where section 230 originated, subsection (e)(3) contained only the first sentence. See H.R. 1555, amend. 744, 104th Cong. (1995), 141 Cong. Rec. H8469 (daily ed. Aug. 4, 1995). In reconciling a competing bill, the Senate adopted the House proposal “with minor modifications,” including what is now the second sentence. S. Rep. No. 104-230, at 194 (1996) (Conf. Rep.). It would be surprising if these “minor modifications” included the addition of immunity from suit.

However, as Jeff Kosseff — literally the guy who wrote the very comprehensive book on the history of Section 230 — notes, Judge Nguyen is exactly wrong.

Kosseff notes that his book goes through this, though so does the law review article he published a few years ago, which details how Section 230 changed during the conference committee and how it was, deliberately, about making internet intermediaries immune from lawsuits. He points out that while the initial draft of the law was supposed to prohibit the FCC from regulating the internet, during the reconciliation process, they deliberately “clarified the intention to preempt litigation” by adding in that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

If it was just about being a defense against liability, they would not have included “no cause of action may be brought.” But the ruling this week claims that Congress was just being superfluous there:

Meta argues that the phrase “[n]o cause of action may be brought” implies immunity from suit because reading it to provide immunity from liability would render the phrase “no liability may be imposed” superfluous. Id. § 230(e)(3). Not necessarily. Congress may have included “cause of action” to encompass suits for injunctive and declaratory relief, since “liability” could be read to encompass only damages. At the same time, Congress may have prohibited the imposition of “liability” to encompass orders by state administrative agencies, which may not involve causes of action. Whatever Congress’s reason for including both phrases, “sometimes the better overall reading of the statute contains some redundancy”

The ruling this week then dismisses all of the many other times that the Ninth Circuit (and other courts) said that 230 was an immunity from suit by basically saying “eh, previous courts were sloppy with language” along with “and when we said that it was never that important.”

It is true that we have used the phrase “immunity” somewhat loosely in our section 230 jurisprudence; although we generally describe it as “immunity from liability,” we sometimes describe it as “immunity from suit.” But none of this usage is binding, because we have never addressed whether the denial of a section 230 defense is a collateral order…

In a footnote, the ruling lists off many (though not all) of the times the same Ninth Circuit has said “immunity from suit.”

See, e.g., Lemmon v. Snap, Inc., 995 F.3d 1085, 1087, 1090 (9th Cir. 2021) (describing section 230(c)(1) as immunity “from . . . suit” and “from liability”); Barnes, 570 F.3d at 1099–1100 (stating that section 230 “protects certain internetbased actors from certain kinds of lawsuits” and that it “protects from liability”); Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1173, 1175 (9th Cir. 2009) (describing the statute as “plainly immuniz[ing] from suit” and providing “protection . . . for civil liability”); Carafano, 339 F.3d at 1122, 1125 (referring to “immunity from liability” and “immunity from suit”).

So, in order to reach this result, the Ninth Circuit needed to reinterpret and dismiss both many prior Ninth Circuit cases, claiming they were just sloppy with their language and the literal text of Section 230, again insisting that the “no cause of action may be brought” was just the drafters being redundant, rather than the much more likely (and as Kosseff’s history has shown, accurate) interpretation that the law was literally written to prevent intermediaries from having to face these kinds of lawsuits entirely.

It is true that the Tenth Circuit (and only the Tenth Circuit) has also ruled this way, but the Ninth Circuit has way more impact because a huge number of internet companies are based in California, which is covered by the Ninth Circuit. And many other circuits have ruled the other way. In Nemet v. ConsumerAffairs, the Fourth Circuit talked about “a sphere of immunity” created by 230 and points out that:

Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process. As we have often explained in the qualified immunity context, “immunity is an immunity from suit rather than a mere defense to liability” and “it is effectively lost if a case is erroneously permitted to go to trial.” Brown v. Gilmore, 278 F.3d 362, 366 n.2 (4th Cir. 2002) (quotations omitted) (emphasis in original). We thus aim to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from “ultimate liability,” but also from “having to fight costly and protracted legal battles.”

In the Sixth Circuit, in the Dirty World case, the court quotes the Eleventh Circuit’s Almeida v. Amazon ruling to note:

The majority of federal circuits have interpreted the CDA to establish broad “federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”

So while the Ninth Circuit argues that this is some sort of novel issue… it’s simply not. Other than the Tenth Circuit in that one case, almost every other court (including the Ninth Circuit itself) has always held that Section 230 provides for immunity from suit, which as the record and the authors make clear, was exactly the point.

Technically, the panel isn’t wrong that none of those other cases squarely held that a 230 denial is immediately appealable. Courts aren’t bound by things they assumed rather than decided. But there’s a difference between “no court has ruled on this” and “every court to touch this for thirty years, plus both authors of the statute, absolutely understood it the same way to the point that they never needed to directly say so.” The panel treats three decades of consistent understanding as if it were a typo.

And while this latest ruling notes that this is fine because the court can always “revisit the issue of section 230 immunity at a later stage of the proceedings,” once again that destroys the very point of 230. This new ruling even points out that the district court is skeptical the plaintiffs even have a case here:

The court expressed its “skepticism” about plaintiffs’ ability to proceed on their “novel” failure-to-warn theories in light of section 230 but allowed the claims to proceed “for now” given that the litigation was at an “early juncture” and the law regarding section 230 immunity was “in some flux.”

But, once again, that’s the entire point of Section 230! To end these weak cases early!

Indeed, going all the way back to the Roommates case that we mentioned up top, where Kozinski coined his duck bites line, what was most memorable about that case is that the ruling denied Section 230’s protections to Roommates.com over one feature (though dismissed other claims because of it). And Roommates then had to spend four more years litigating the case… only to still win many years, and many millions of dollars later.

That, on its own, shows how important 230 is in getting rid of cases early. The whole point is that most of these kinds of cases are losers for their plaintiffs in the long run on First Amendment or other grounds. The benefit of Section 230 is that the companies don’t have to waste many years and many millions of dollars to get to that final conclusion. But the Ninth Circuit, apparently no longer caring about death by ten thousand duck bites, now says that such cases are free to proceed without interlocutory review at the very point it matters most.

Now the internet companies have a choice: they can ask the entire Ninth Circuit to review en banc, even as that’s a crapshoot with its current roster. They can ask the Supreme Court to weigh in, when we already know a few of the Justices hate Section 230. Or, they can submit to the first 3,000 duck bites, and see if they survive.

Which is the real irony here: for all the years of congressional threats to gut Section 230, it turns out the courts are the ducks, and there’s less of the law left after every bite.

Filed Under: 9th circuit, alex kozinski, content moderation, duck bites, immunity, intermediary liability, section 230
Companies: meta