Newsflash: 03/31/2026 @ 6:55:12 PM
Scope:
This article discusses the Section 230 dubbed as the Communication Decency Act (“CDA”), litigation history and current posture of the courts with social media firms seeking CDA immunity with respect to lawsuits against these large corporate outfits.
Section 230 Provisioning for CDA Immunity Under Fire
Courts fire back on CDA immunity claims against Google and Meta. It seems that the tide is shifting, with respect to the USA federal courts and the normal and general ‘Hand waving’ political sideways approach to interpreting section 230 of the United States Code which has been dubbed as the Communication Decency Act (“CDA”).
Since 1996, the CDA has been interpreted as providing blanket immunity to technology companies. Consequently, social media sprung rapidly, with technology companies resting assured they could not be sued for the content published on their networks as authored by third parties.
The wildly popular Meta Platforms Inc., which owns Facebook, WhatsApp, and Instagram coupled with the internet police-giant Google per its YouTube have routinely and extensively raised section 230 as a complete defense to civil litigation against it often seeking monumental damages against these companies.
Let’s be clear, large corps such as Meta Platforms Inc., and Google Inc., are often targeted by Big Law for massive payouts the overwhelming majority of which enters the coffers of the attorneys and (if lucky) upon shakedown a few pennies here and there actually go to the plaintiffs e.g. the individuals actually harmed by the law(s) in question giving rise to suit; in this case the CDA.
What is worse is that Big Law rarely, if ever, comes clean with their clients on the probability of success on the lawsuits they bring into the federal courts such as the CDA. Granted, section 230 of the CDA is a very high bar to climb and does provide immunity to social media outfits who publish the content of others; but, not without exception. And while the exception paths are few and narrow, they are carved out by statute. Thus, one would wonder why, even today, there are literally thousands of lawsuits against Meta and Google related to the CDA which have so little chance of success, while there are at least a few paths which provision for smooth sailing against these social media outfits in courts whereas CDA immunity is not available as a defense.
Big Law Collaborates with Courts for CDA Judgments
The current collaboration route against these media outfits is to target the platforms, directly, rather the content published on those platforms since platforms such as Meta and Google have been successful, at defeating such claims against the content on their platforms, by arguing that the third parties on their platforms who publish such content have a freedom of speech right e.g. constitutional right to protected speech on the internet. No respectable intelligent attorney would argue that the USA’s constitution provides a constitutional guarantee to utter whatever speech one desires on the internet e.g. social media outfits such as Meta and Google. The USA constitution guarantees no such right nor did it ever.
What the USA Constitutional first amendment guaranteed was specifically targeted with respect to the freedom of the press and the ability to use the press as a platform to speak in unfavorable, unpopular manners with the intent of providing a check on abuse of power in public office e.g. public awareness of public office misconduct via the use of freedom of speech and expression per freedom of the press. This was later interpreted by the United States Supreme Court to extend to individuals as part of the Bill of Rights, albeit the USA constitution makes no such explicit statement anywhere.
Even if the USA constitution had made such an explicit right to freedom of speech, such could not possibly have been interpreted as being without exception. It is public common knowledge that freedom of speech exceptions exist as people far and wide know, who are not jurists, that one cannot say certain things on the internet or otherwise and expect to not be held liable (or accountable) for such statements. For example, it is public common knowledge that you cannot make threats of bodily harm to people on the internet or otherwise, especially those holding public office. This is merely one example, as an exception to the concept of freedom of speech. There are other examples to illustrate exceptions - many of which the public knows through word of mouth.
The point being is that the general public is aware that their speech has limits. The public has always been aware of such limits. What the USA Constitution did is strip down most (but not all) of those limits to provide a check of public office abuse of power via freedom of the press and, again, later via the United States Supreme Court's individual rights provision per the USA Bill of Rights.
In any event, the federal and state courts not wanting to wade into the murky waters of ‘Who can say what, when, and how’ on social media have collaborated with Big Law in targeting these platforms, themselves, as opposed to the speech on those platforms. This approach has led to recent verdicts against Meta and Google, including a verdict coming out of the central district of California e.g. the greater Los Angeles area.
Meta and Google Platforms Found Liable for Damages
Let’s take a closer look:
“[A Los Angeles jury] found Meta liable for $4.2 million in damages and Google for $1.8 million, small amounts for two of the world's most valuable companies with annual capital spending over $100 billion each” Reuters
The plaintiff, Kaley, – a 20-year old Caucasian woman, alleged
“[S]he became addicted to Google's YouTube and Meta's Instagram at a young age because of their attention-grabbing design, such as the “infinite scroll” that encourages users to keep looking at new posts.”
So in essence, a Los Angeles jury found Google and Meta liable for behavior of a, now, adult, which began as a minor, for actions which Google and Meta could and likely will argue (if they have competent counsel) – “At what point did the plaintiff realize the behavior she now argues was addictive? And at that point did the plaintiff continue to use the platform(s) after realizing the harm?” In short, legally - one cannot inflict harm upon themselves by continuing to engage in conduct they know is harmful to them then go after the coffers of those who allegedly provisioned for the harmful environment. That is squarely a merit based appeal argument.
Then there is the case in New Mexico whereas Meta was found liable, via a jury verdict, of $375 million in damages per the state of New Mexico’s state law regarding harmful content targeting children. In particular, the Meta court found:
“The jury also found that the company’s actions were unconscionable, meaning Meta knowingly took advantage of a lack of knowledge in New Mexico residents.”
See the difference? In the New Mexico case, the verdict was based on state law, which is an exception to the CDA law, and specifically affirming that Meta “[K]nowingly took advantage of a lack of knowledge in New Mexico residents.” This is particularly damaging (but not impossible) and will be very difficult to overcome on appeal.
For Meta, the possibility rests with its ability to narrow the circumstances of the judgment via going after the stated 75,000 violations, each of which was awarded $5,000. A merit based argument could be made that no impartial jury could possibly have deliberated in less than one day in reaching a verdict for the breathtaking amount of $375 million. The math does not lie. Assuming the jury deliberated for just six hours, that would mean the jury actually assessed damages of 12,500 violations per hour. Really! Come on.
Legalhotwater’s Challenge to the CDA Silenced and Censored
Meanwhile, Legalhotwater has made a very compelling case involving Meta, Section 230 e.g. the CDA, and several constitutional claims, which were dismissed in the lower federal district court via left wing senior judge Susan Illston, who is long past due for retirement. Legalhotwater immediately appealed that case, which has been parked in the 9th circuit court of appeals ever since. Following the appeal docketing, Legalhotwater submitted a motion to the full court to hear the CDA issue, to which the court has never responded.
Let’s look at Legalhotwater’s arguments a little closer.
“It is appellees’ position that the Communication Decency Act (“CDA”) provisions absolute immunity such as to promote criminal-civil digital-verse discourse whereas appellees can create, manage, and/or control a digital-verse which completely displaces said Constitutional Rights, under the ill drawn conclusion that Congress, via the CDA, permitted the creation and evolution of a wild wild west internet and thereby sanctioned private entities to displace Constitutional Rights. Appellees position is misplaced, ill drawn, and entirely frivolous.” Legalhotwater's en banc referral motion. See brief below.
For the layman, let’s examine the crux of the Legalhotwater’s posture. What is at issue, here, is that freedom of speech works both ways e.g. if a speaker on Facebook has a right to utter speech no matter how foul, offensive, derogatory, and of a harassing nature, does not the receiver (in this Legalhotwater) not have a right to utter his decline to partake in the free speech of others, at Legalhotwater’s discretion – when it finds such speech as “[F]oul, offensive, derogatory, and of a harassing nature?” This argument cannot be defeated – not by an impartial judge or jury. Why? Common sense dictates that every person has a right to say, “You know what, I do not want to hear that speech and I am advising you Meta that these third parties continue to utter this speech via targeting my feed (despite never having any relationship with the parties) with such speech and these parties routinely create fake un-vetted Facebook accounts for the sole purpose of harassing and targeting others with their speech.” For the court or a jury to say otherwise would mean that anyone can say what they want to anyone else and that the person who dislikes the speech cannot leave that conversation but rather has to stay in that conversation and absorb the speech or alternatively left with the sole option to leave the platform altogether. In essence, this misplaced legal argument would create a backdoor discrimination channel or quasi-censorship route for those who harass others on Facebook. Once more, Legalhotwater’s position is entirely consistent with section 230 itself e.g. the CDA
Let’s look:
“[It is the policy of the United States] - to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” Section 230 (b) (5).
Now this section does not provision for a private right of action based on criminal law violations. At the same time, this section begs for (and requires) uniformity in application. How so? Criminal prosecution for legal transgressions, especially like here, are within the sound discretion of local-federal prosecutors who most assuredly will not prosecute for these misdemeanor crimes. At issue is how can Meta and other social media outfits claim civil immunity for behavior, which could be said to be unconscionable, when the policy of the United States is to deter said behavior? This is a central issue.
Either the CDA is a toothless caricature, since prosecutors will not prosecute high ranking executives in Meta, Google, etc., to deter Meta and Google from permitting such behavior or the courthouse doors are open to a plaintiff who can bring a cause of action under tort law based upon the same arguable unconscionable behavior and/or that which is consistent with the United States policy on “[O]bscenity, stalking, and harassment,” in a civil law context. In other words, a civil plaintiff, while having no right to pursue criminal violations, can and should be permitted to invoke civil law based upon the same conduct, in a civil law context – which the United States has already made clear such conduct is not a basis for a defendant to invoke CDA immunity in a criminal law context.
Perhaps this is yet another example of how ‘White is Right’ race superiority politics play into who gets to raise the same or similar arguments, and how the courts fashion their partial (versus impartial) determinations based upon the race of a plaintiff. For the layman, while the jury entered these foregoing verdicts, is was the judges who decided what the jury heard or did not hear based upon the politics of the bench via the facts vehicle i.e. what facts the judge wants presented to the jury aka motion in limine - presented by a defendent, which these courts routinely deny, especially when it knows they have a defendent in a precarious position and either the court/judge is looking to make a name for itself or him/her-self coupled with political pressure of Caucasian soccer moms outside the courthouse demanding justice for their sons/daughters while turning a blind eye to the same legal issues as it applies to those who do not look like them.
Legalhotwater’s brief is found below.