Ninth Circuit Ruling Will Force Online Platforms That Host User Speech to Fight Lengthy and Costly Lawsuits Before They Are Dismissed Under Section 230

A federal appeals court just made it harder for online services, big and small, to get lawsuits over user speech dismissed early. In California v. Meta, a Ninth Circuit three-judge panel held that the lower court’s denial of Section 230 immunity to Meta is not immediately appealable. The misguided ruling has the potential to have widespread impact and to threaten the free speech of all internet users.

The ruling is bigger than a loss for Meta, which has the resources to defend itself against these lawsuits. The court’s ruling signals that all online services (and internet users) that host others’ speech—including those without Meta’s deep pockets—must bear the burden and expense of fighting lawsuits that Section 230 ultimately precludes. This will have real consequences, incentivizing online services to take down users’ speech in response to spurious legal threats, filter speech preemptively, or simply stop offering a place for people to speak online. So even though some may think that Meta is not a sympathetic company, the ruling should raise concerns for anyone who cares about an open and free internet.

Immunities from Suit Advance Important Public Interests

A little procedural background is necessary to understand the implications of the Ninth Circuit’s ruling.

Meta had moved to dismiss a group of social media addiction cases brought by state attorneys general, school districts, and local governments. Meta argued that Section 230(c)(1) immunity applies because the plaintiffs’ claims, framed as seeking to hold Meta liable for allegedly harmful platform features, really seek to hold the company liable for publishing decisions related to third-party content. Section 230 is one of the most important laws supporting online free speech, because its protections for online services enable them to distribute users’ speech at an unprecedented scale.

The district court ruled that Section 230 does not apply to certain features (and does apply to others) and so denied the motion to dismiss on the claims related to those features. Meta immediately appealed invoking appellate jurisdiction under 28 U.S.C. § 1291, but the question before the Ninth Circuit was whether the appeal was legally appropriate.

Under Section 1291, U.S. circuit courts generally only have jurisdiction to hear appeals of “final decisions” from the district courts. Final decisions are trial court orders ending a case, or come after a trial on the merits. Section 230 appellate cases often arise from a district court’s grant of a defendant platform’s motion to dismiss the plaintiff’s case based on Section 230. Typically, a district court’s denial of a defendant’s motion to dismiss is not a final order—it simply means that the case may continue to discovery and summary judgment or trial, after which time an appeal would be appropriate.

However, federal law allows for “interlocutory appeals,” which are appeals of orders that do not end a case but nonetheless are allowed because they involve important legal issues. For example, there is an exception to Section 1291 called the “collateral order doctrine”—at issue in this case—allowing for immediate appeal if, as the Ninth Circuit explained here, “holding a trial would imperil a substantial public interest.”

Inherent in the collateral order doctrine is the consideration of whether an immunity like Section 230 provides mere “immunity from liability” or a more robust “immunity from suit.”

An immunity from liability does not require an immediate appeal and so demands that Section 1291’s final order rule be followed. That’s because waiting until the end of a case before an appellate court can consider the trial court’s denial of immunity does not prejudice the defendant. The appellate court may overturn the trial court and grant the immunity, and thus the defendant’s right to be immune from liability would be vindicated on appeal.

Immunity from suit is different. It means that the public interest demands that a defendant be able to get out of a case as early as possible and avoid having to litigate the case to the end. The U.S. Supreme Court has held, for example, that qualified immunity is such an immunity, and that a district court’s denial of qualified immunity for a government official is immediately appealable under Section 1291, notwithstanding the lack of a final order. The idea is that the public interest is served when government officials are free to act without fear of consequences when established rights are not implicated, and so determining as soon as possible whether their acts are immune serves that public interest.

Here, the Ninth Circuit held that the district court’s denial of Section 230 immunity for Meta was not immediately appealable under Section 1291’s collateral order doctrine because the immunity is not from suit, but rather from ultimate liability. The panel’s absurd result contravenes the text of Section 230, the statute’s policy goals, and the court’s own prior rulings.

Treating Section 230 as an Immunity from Suit Protects Online Free Speech

Meta rightly argued that Section 230(e)(3) plainly states, “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.” The panel dismissed this argument, stating that this language likely amounts to “redundancy” reflecting only immunity from liability. The court failed to side with the more reasonable position that statutory language should generally not be interpreted as superfluous.

Meta also reminded the panel that the Ninth Circuit has many times over the past two decades framed Section 230 as both an immunity from liability and an immunity from suit. The panel also dismissed this argument, stating, “It is true that we have used the phrase ‘immunity’ somewhat loosely in our section 230 jurisprudence.”

But “loosely” is a gross mischaracterization—the panel did not discuss a seminal prior ruling, Fair Housing Council of San Fernando Valley v. Roommates.com (2008), in which the entire Ninth Circuit, not just a three-judge panel, explicitly ruled that Section 230 is also an immunity from suit. That court rightly explained that Section 230 “must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.”

Why is it important that social media platforms and other internet intermediaries (and their users) have immunity from suit for engaging in publishing activities related to third-party content—and thus a right to immediately appeal when Section 230 immunity is denied?

The Ninth Circuit panel here, using their own words, failed to “evaluate the interests that would be lost through rigorous application of a final judgment requirement” and failed to consider the “substantial public interest” served by treating Section 230 as an immunity from suit.

Section 230 immunity, contrary to what some argue, is not a gift to Big Tech—it applies to all internet intermediaries, big and small, from the large social media companies to smaller entities like community message boards and local ISPs. It even protects internet users who forward others’ emails or host comments on their blogs. In turn, the law supports the free speech of all internet users.

While it is helpful when an internet intermediary can ultimately benefit from Section 230 immunity, if a trial court’s early denial is not immediately appealable, that means the intermediary must bear the extended logistical and financial burdens of defending itself. Under the Ninth Circuit’s logic, anyone hosting others’ speech online would have to endure the pain and expense of discovery, summary judgment, or trial, before they ultimately can be protected by Section 230.

Congress crafted Section 230 to give internet intermediaries legal breathing room, so that they will be incentivized to facilitate online communication and commerce, allowing the rest of us to go online with minimal barriers to entry, without needing to have loads of money or to know how to code. Congress acknowledged in Section 230 itself, “Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.”

Yet if platforms, especially smaller platforms, know that they will have to defend themselves for years in court before they can ultimately benefit from Section 230 immunity, this alone will create a perverse incentive, as we have explained, to censor user speech, in order to reduce the platforms’ legal exposure. And this incentive is only exacerbated at scale, where the sheer volume of user-generated content hosted by modern platforms makes legal risk astronomical.

Unfortunately, this opinion seems to be part of larger trend reflecting the Ninth Circuit’s increasing disdain for Section 230, and apparently for free speech rights more broadly. The court similarly held last year in Gopher Media v. Melone (2025)—overruling itself—that a trial court’s denial of a defendant’s anti-SLAPP motion also is not immediately appealable under the collateral order doctrine. This is despite the fact that, similar to Section 230, California’s anti-SLAPP law is intended to allow defendants to get harassing lawsuits meant to silence them dismissed early, lest they be chilled from engaging in lawful speech on public issues due to the risk of being mired in litigation, even if they ultimately win a delayed appeal.