Ninth Circuit Rules That Tech Companies Can’t Prematurely Appeal Section 230 Losses

On August 10, the Ninth Circuit ruled against Meta in California et al. v. Meta, an important case about harmful social media design and Section 230. EPIC, alongside other digital rights orgs and professors, had filed an amicus brief in the case supporting the plaintiffs (state attorneys general, individual users, school districts, etc.). As EPIC predicted after oral argument, the Court avoided deciding the merits of the Section 230 arguments, but it dealt Meta and other tech giants a blow by ruling that it did not have jurisdiction to hear their appeal. This means the companies will have to wait for the conclusion in the district court case before appealing the Section 230 rulings. This matters because the companies strenuously try to avoid discovery, a process where they have to release internal documents and communications about their policies and practices.

This is a major decision that resolves an open question about whether tech companies who lose Section 230 arguments at the early motion to dismiss stage can delay discovery by immediately appealing or, instead, must wait for the case to conclude. The companies have now lost this argument in both federal appeals courts to have addressed it, the Ninth and Tenth Circuits.

The appeal stemmed from the enormous multidistrict litigation, thousands of similar lawsuits consolidated for pretrial proceedings, against Meta in the Northern District of California. In all of these cases, the plaintiffs argue that Meta harmed child users by engineering its social media platforms to cause compulsive use, which contributes to more data extraction and ad revenue for Meta.

In the district court case, Meta had filed a motion to dismiss the plaintiffs’ claims, arguing—among other things—that Section 230 prohibited the claims against it. The judge partially granted and partially denied the motion to dismiss, ruling that Section 230 did apply to some claims but not others. Meta appealed the issues it lost. The plaintiffs cross-appealed the issues that they lost, while arguing more broadly that the appeal was premature.

In the appeal, the Ninth Circuit ultimately agreed with the plaintiffs and dismissed the appeal for lack of jurisdiction. It explained that the American legal system has a strong preference for a single appeal after a lower court judge issues a final judgment in a case. Otherwise, parties could indefinitely lengthen cases and make them more expensive by appealing each distinct judicial decision at each stage of a case. But there is an exception: a legal rule called the collateral order doctrine recognizes a narrow set of decisions that may be immediately appealed despite not being final judgments. Meta argued that a denial of a motion to dismiss on Section 230 grounds was just such a decision, but the Ninth Circuit disagreed. Analyzing the language and purpose of Section 230, it ruled that Meta’s interests would be well served by appealing the Section 230 denial after the case concluded.

Meta has asked the Supreme Court to hear the case, and it is unclear what the Court is likely to do. It has refused to hear all of the recent Section 230 petitions it has received, but this is a relatively narrow and important issue within Section 230 interpretation. Either way, EPIC will continue to fight for the correct interpretation of Section 230 that protects users’ speech online without providing tech companies a get-out-of-jail-free card for their harmful acts.