Ninth Circuit Panel Goes Out of Its Way to Question Section 230-Doe v. Meta - Technology & Marketing Law Blog
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Browse: Home<br>" 2026<br>" May<br>" Ninth Circuit Panel Goes Out of Its Way to Question Section 230–Doe v. Meta
Ninth Circuit Panel Goes Out of Its Way to Question Section 230–Doe v. Meta
May 25, 2026 · by Eric Goldman · in Content Regulation, Derivative Liability
[I’ve been sitting on this ruling for almost a month because blog posts like this are time-consuming and emotionally draining to write. It may not look it, but this post took about 6 hours to write.]
This case involves a terrible tragedy: genocidal violent attacks on the Rohingya minority in Myanmar at the beginning of the 2010s. The plaintiffs sued Facebook for its role in the attacks, such as its alleged algorithmic turbocharging of rage content posted by its users.
Despite the tragedy, the facts sound like a straightforward Section 230 situation. However, the lower court didn’t rely on Section 230 to dismiss the complaint. Indeed, Section 230 isn’t mentioned a single time in the district court dismissal, part of why I never blogged that opinion. Instead, the district court dismissed the case solely on statute of limitations grounds ("the Court determines plaintiffs’ claims, having been brought in 2021, were filed outside the applicable two-year statute of limitations") without mentioning Section 230 even once. The panel acknowledges that this case did not present itself to the Ninth Circuit as a Section 230 case: "Because the district court dismissed Plaintiffs’ claims as untimely, it did not reach the Section 230 issue."
Given that Section 230 is nowhere to be found in the lower court opinion, the Ninth Circuit could have affirmed the lower court on statute of limitations grounds. Or, if it disagreed with that ruling, it could have reversed the lower court’s ruling and remanded the case to the lower court to evaluate other aspects of the case, such as Section 230.
This panel did neither. The Ninth Circuit panel’s opinion doesn’t engage with the statute of limitations issue at all, i.e., it doesn’t indicate if the lower court was right or wrong on that topic. Instead, the Ninth Circuit panel requested the parties file supplemental briefings on Section 230 grounds (remember, the plaintiffs couldn’t initially appeal on Section 230 grounds because the lower court didn’t mention Section 230 at all) and then conducted its own de novo application of Section 230 without any guidance at all from the lower court.
In other words, the Ninth Circuit panel didn’t have to discuss Section 230. IT WENT OUT OF ITS WAY TO DO SO. The panel then raised Section 230 on its own initiative and then criticized Section 230’s application as a problem–even though Section 230 didn’t dictate the outcome at the lower court. The panel’s issue-seeking is a blazing red flag of judicial activism.
(Also, the panel opinion isn’t very transparent about why it chose to discuss only Section 230 and entirely ignore the lower court’s statute of limitations ruling. It treats Section 230 as a critical-path item without disclosing that the panel went off-road to address it. The panel disingenuously says "Meta renews its Section 230 arguments on appeal," which is because the Ninth Circuit requested supplemental briefings on 230).
The plaintiffs argued that Myanmar law, which doesn’t contain Section 230 immunity, should govern instead of US law. The panel rejects this argument:
The United States’ interest in applying Section 230 is clear. Imposing liability on Meta for its actions as a publisher would frustrate Section 230’s purpose of “promot[ing] the continued development of the Internet and other interactive computer services.”…
Myanmar’s interest in protecting its citizens from harmful attacks and misinformation on Facebook, while real, is insufficiently incorporated into the positive law of the country. Myanmar’s interest therefore does not predominate. For these reasons, even if we could or should consider Myanmar law, Section 230 applies
I am not a conflicts-of-laws expert, so I don’t know if the court’s methodology or conclusion is unusual. The fact that Section 230 protects a U.S. company being sued in the U.S. seems intuitive to me, even if the plaintiffs are foreigners and the offline harms took place in a foreign country. For more on Section 230’s extraterritorial application, see Prof. Chander’s paper.
In his self-concurrence (discussed further below), Judge Nelson says this part of the panel opinion (which he wrote) wasn’t necessary because Section 230 is a federal law, so it preempts any of California’s choice-of-law provisions. He has nine citations to the...