Why Section 230 Immunity Is Not a Given

The limitations of one of the most fundamental laws of the internet, Section 230 of the Communications Decency Act, is once again being tested. As a reminder, Section 230 is what makes freedom of speech on the internet possible. It does so by granting website owners/operators immunity from any liability relating to the content posted by users. Without Section 230, the internet as we know it would not exist because any site that’s built on user-generated content—which is, basically, all of them—would be too risky to operate. As important as Section 230 has been to the growth of the internet, it’s not without its faults, and in recent years it’s been at the center of much debate, and it has becoming seemingly inevitable that reform is on the way. A recent ruling by the Ninth Circuit Court of Appeals in Lemmon v. Snap may be an early indication of Courts narrowing the broad immunity that’s historically been provided by Section 230.

Lemmon v. Snap
If you are not familiar with Snapchat, one of its most attractive features is the ability to add custom filters to photos and videos. In May of 2017, one of the filters available on Snapchat allowed users to clock, and display, their speed at the time the message was being sent. As tragedy would have it, three young men in Wisconsin, in what may have been an attempt to register a high speed using the Snapchat filter, drove a car at a speed in excess of 100 mph into a tree. All three boys died.

Two of boy’s parents sued Snap claiming that Snap was negligent in its design of the filter. Snap moved to dismiss arguing that it was immune from suit under Section 230, and the district court granted such dismissal. The district court held that the Snap’s filter was a content-neutral tool that could be properly or improperly utilized, and as such it made Snap immune to liability under Section 230.

The Ninth Circuit says, “Not so fast.”
In May of 2021, the Ninth Circuit reversed the district court’s dismissal and held that Section 230 does not provide Snap with immunity from the parent’s negligent design claim. The Court emphasized that Section 230 is not meant to shield companies from claims against their content or actions, but instead is meant to shield companies against content published by third parties. In this case, the parents were not suing Snap over the content published by the boys, or any third party, instead the parents were suing Snap over the design of the filter that incentivized users to speed. The Nine Circuit also emphasized that Snap’s duty to design a reasonably safe product is entirely separate from role regarding the monitoring, or publishing of user content on their platform.

The Ninth Circuit’s decision here, and the outcome of this case will be interesting to follow, because it helps illustrate the boundaries of how broadly courts are willing to interpret Section 230 immunity. Decisions like this may not only affect future interpretations of Section 230, but if Section 230 were to be revised, cases like Lemmon v. Snap may help redraw the boundaries on the type of liability/responsibility we think companies should reasonably bear.


The Misinformation of Capitol Hill: Section 230 and the Weaponization of Social Media