Denial of Defense Under §230 of CDA Is Not Appealable

Tuesday, August 11, 2026

Page 3

Ninth Circuit:

Denial of Defense Under §230 of CDA Is Not Appealable

Opinion Says Law, Which Shields Social Media Sites From Liability Over Third-Party Posts in Some Contexts, Does Not Operate as Immunity From Suit Such That Challenge Before Final Judgment Would Be Appropriate

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals held yesterday that it lacks jurisdiction to review orders denying motions to dismiss filed by Meta Platforms Inc. in a series of lawsuits accusing the Silicon Valley giant of failing to safeguard teenagers, rejecting the contention that an online services provider is entitled to appeal interlocutory decrees in such cases.

The court declined to decide if the defendant is entitled to the protections of §230 of the Communications Decency Act (“CDA”) of 1996. That section provides platforms with a defense to attempts to hold them responsible for third-party posts made on their platforms under certain circumstances, specifying:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Yesterday’s opinion, authored by Circuit Judge Jacqueline H. Nguyen and joined in by Circuit Judge Mark J. Bennett and by Senior District Court Judge Kiyo A. Matsumoto of the Eastern District of New York, sitting by designation, declares:

“Because section 230 merely provides a defense to liability—not immunity from suit—we lack appellate jurisdiction to review the district court’s rulings on an interlocutory basis. Therefore, we dismiss [the] appeals….”

She added:

“Meta argues that this court ‘has repeatedly held that Section 230 confers immunity from suit.’ 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.”

Multi-District Litigation

The question arose after hundreds of lawsuits were filed across multiple jurisdictions by plaintiffs, including the State of California, alleging that Facebook, Instagram, TikTok and other social media platforms amplify harmful and exploitive content while encouraging adolescents to bypass parental controls. The cases were consolidated for pretrial proceedings in the Northern District of California by way of a multi-district litigation order.

Then-District Court Judge Yvonne Gonzalez-Rogers (now serving as chief judge) organized the litigation into five tracks, including one for priority claims brought by individuals for personal injuries, another for causes of action asserted by state attorneys general, and a third for assertions by local school districts.

Meta moved to dismiss the claims asserted by the attorneys general and the school districts in December 2023, arguing that §230 of the CDA bars the causes of action “in substantial part.”

In October 2024, Rogers “generally denied” the requests but found the statute provides “a fairly significant limitation” on the claims.

Nguyen noted the general rule that a party must wait until final judgment to appeal orders that contradict its interests and said:

“An order denying a motion to dismiss—in whole or in part—does not meet this criterion.”

Collateral Order Doctrine

However, she acknowledged that the so-called “collateral order doctrine” recognizes a narrow exception for a class of rulings that do not terminate the litigation but require immediate appealability in order to support the efficient administration of justice in federal courts. She wrote:

“To satisfy the collateral order doctrine, a district court’s decision must (1) ‘conclusively determine the disputed question’; (2) ‘resolve an important issue completely separate from the merits of the action’; and (3) ‘be effectively unreviewable on appeal from a final judgment.’ ”

Saying that “Meta’s argument turns on the third…factor,” the jurist opined:

“In this context, it is important to distinguish between immunity from suit and ‘immunity’ that is a mere defense to liability.”

She clarified that, while a party asserting immunity from suit makes no challenge to the merits of the claims against it because its assertion does not turn on the legality of his conduct, “[i]mmunity from liability is ‘fundamentally different’ ” because a litigant advancing such a theory must provide some reason why the conduct at issue is compliant with the law. Nguyen wrote:

“Meta…points to the second sentence of section 230(e)(3), which provides: ‘Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 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.’…(emphasis added).”

Superfluous Phrasing

She continued:

“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….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….Whatever Congress’s reason for including both phrases, ‘sometimes the better overall reading of the statute contains some redundancy,’….”

Reasoning that the “substantive protection” set forth in §230(b) of the CSA describes a defense rather than an immunity-shield, she remarked that “Section 230(c)(1) pointedly does not provide immunity to internet service providers per se” as courts are directed to examine whether a plaintiff’s theory of liability seeks to treat the defendant as a publisher or speaker of third-party content. She added:

“Meta asserts that if Congress had merely intended to enact immunity from liability, ‘it could have explicitly done so.’ Perhaps. But that turns the presumption against an immediate appeal on its head.”

Defense to Liability

The judge added:

“[W]e hold that section 230 provides a defense to liability, not immunity from suit, and an order denying this defense can be effectively reviewed on appeal from a final judgment. While that is a sufficient basis to conclude that we lack appellate jurisdiction, we briefly explain why the other two [factors] are not satisfied either.”

She pointed out that Rogers indicated a willingness to revisit the issue of §230 protections at a later stage in the proceedings, so the denial did not “conclusively determine” the question, and that the resolution of the defendants’ assertion of immunity implicates the factual allegations surrounding the claims.

In a footnote, Nguyen noted:

“ByteDance Ltd. and other entities related to the TikTok app also appeal [the denial of their motions to dismiss based on §230]. The TikTok entities have not independently briefed any of the issues and merely join in Meta’s arguments.”

She further declared, in another footnote:

“Meta’s emergency motion to stay trial pending resolution of this appeal…is denied as moot.”

The case People of the State of California v. Meta Platforms Inc., 24-7032.

Trial is scheduled in the case for Wednesday. Attorney General Rob Bonta yesterday issued a statement praising the decision, saying:

“Meta designed a dangerous product for young users, knew it to be dangerous, and then lied to children, families, and the community about how dangerous it was. We are ready to hold Meta accountable for its role in fueling the mental health crisis of American children and look forward to trial. It seems Meta very much does not.”

In March, a Los Angeles Superior Court jury found Meta and Google liable on claims asserting that the companies designed their platforms to be addictive and harmed a young woman’s mental health, awarding the plaintiff $6 million in damages. That case is K.G.M. v. Meta Platforms Inc.