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Ninth Circuit Rewrites Section 230 To Remove The Part That Actually Mattered

Legal Issues

from the the-ducks-are-in-a-biting-mood dept

Wed, Aug 12th 2026 05:26am -

Mike Masnick

For all the talk of "reforming" or "repealing" Section 230 in Congress, the fact is that the courts over the past three or four years have effectively chipped away so steadily at the law that it’s lost a significant chunk of its usefulness. The latest comes from the Ninth Circuit, which ruled earlier this week that Section 230 is not, in fact, an immunity from lawsuit, but merely a defense against liability. This may sound like a procedural technicality — and, indeed, the coverage of this case from the likes of Reuters covers it as a boring procedural story — but it’s a huge deal.

To get there, the panel had to rewrite the history of Section 230 and wave off a whole stack of its own prior rulings as either sloppy word choice or mere dicta.

To understand why this ruling is such a big deal, you first have to understand Section 230’s true benefit: it would get bogus cases tossed at the earliest moment. This is the entire key to why Section 230 is important. The point of Section 230 is to put the liability on the party actually violating the law — which would be the creator of the content, and not the intermediary tool they use to host/distribute that content. But the mechanism used to protect speech is that it gets the cases against intermediaries dismissed very early (aggrieved parties can still sue the actual speakers).

If it didn’t do this, the vast majority of the benefits of Section 230 would be lost. Indeed, in one of the many early Section 230 cases, the Ninth Circuit’s Alex Kozinski colorfully described why Section 230 immunity was so important in the famous Roommates case:

Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites , fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties…

Every bit of that bolded section is important — and it’s what the court is now ignoring. First, it’s Kozinski not just calling out that Section 230 provides "immunity" but that without it, we would "cut the heart out of Section 230" by "forcing websites to face death by ten thousand duck-bites." Kozinski was exactly correct, and Section 230’s authors, Ron Wyden and Chris Cox, have said he got it right (I was at a conference years ago where both Cox and Kozinski were present, and when Cox said this interpretation was correct, Kozinski made a joke to the effect that it wasn’t often that a priest got word directly from God that his interpretation of the scriptures was correct).

The operative aspect of 230 is that it’s an immunity that gets rid of those cases early. Because without that, the mere threat of litigation would force many websites to simply remove content to avoid the cost of going through litigation. That’s the duck bites part of this.

And part of what’s important about it being an immunity is that if the district court refuses to dismiss the case on Section 230 grounds, you can immediately appeal that ("an interlocutory appeal") to the appeals court to say that the district court got this wrong… rather than having to go through the entire litigation process (the thing you’re supposed to be immune from) and then telling an appeals court about the error. By not allowing an interlocutory appeal, it would do away with the element of Section 230 that makes it so effective.

Yet, on Monday, the same Ninth Circuit basically said "eh… nope." Yes, the ruling was specifically procedural, but it was procedural on that point. Meta and TikTok — and, by extension, every other company facing these suits — have to get pecked to death by ducks first, and only afterwards can they tell an appeals court they never should have been pecked at all. The "procedural" rejection by the Ninth Circuit means that more than 3,000 lawsuits filed against these companies can move forward. It’s not (yet) the full ten thousand duck bites Kozinski warned about, but it’s in the ballpark. And we’re already seeing those duck bites in action.

What’s incredible, though, is just how confused the panel is about all of this. Judge Jacqueline Nguyen, writing for the court, starts by getting the history of Section 230 wrong:

The...