Feb 21, 2025
Anderson v. TikTok: A Landmark Decision Shakes Section 230 Immunity
By, Stuart B. Leijon
The U.S. Court of Appeals for the Third Circuit delivered a pivotal decision last August in Anderson v. TikTok, which could have far-reaching consequences for the future of Section 230 immunity and social media platforms’ responsibility to moderate content and avoid promoting potentially dangerous content. In August 2024, the court ruled that TikTok, Inc. and its co-defendant ByteDance Ltd. could not rely on Section 230 of the Communications Decency Act to shield itself from liability in a lawsuit stemming from a tragic incident involving a viral challenge on its platform.
Background of the Case
The lawsuit arose from the tragic death of ten-year-old Nylah Anderson, who succumbed to injuries resulting from her participation in the “Blackout Challenge.” The Challenge is a viral trend in which participants cut off oxygen to their brain by various means, such as strangulation. TikTok’s algorithm determined that the Blackout Challenge would likely be of interest to Nylah and promoted it on her feed. Nylah’s mother, Tawainna Anderson, filed the lawsuit and accused TikTok of promoting the challenge to minors through its recommendation system.
Section 230 of the Communications Decency Act, a provision that has long shielded internet platforms from liability for content created by users, has been a cornerstone of legal protections for social media companies. The law allows platforms to avoid liability for third-party content, provided they are not directly involved in creating or developing that content. It does so by distinguishing speech hosted by the social media company, for which it cannot be held liable as the speaker, from speech made by the company itself, for which it can be held liable. Traditionally, this immunity has been interpreted to protect platforms like TikTok from lawsuits based on user-generated content.
TikTok filed a motion to dismiss the suit based in part on the protection that Section 230 provides. TikTok was initially successful at the district court level, but the Third Circuit disagreed, ruling that TikTok’s algorithm, which curates and recommends content to users based on their preferences and behavior, represents the platform’s own “expressive activity,” and thus its own speech. The court held that this activity goes beyond merely hosting third-party content—it constitutes TikTok’s own content creation, which is not protected by Section 230.
The Court’s Rationale
The court’s decision hinged on the distinction between third-party content and platform-generated content. While Section 230 provides broad immunity for platforms that host user content, it does not extend to content that is generated or significantly influenced by the platform itself. The court concluded that TikTok’s algorithm, which deliberately amplifies certain videos and challenges to users based on their engagement, was not a neutral conduit for user content but an active participant in shaping the content that users see.
In a classic case of cutting both ways the circuit court relied on 2024 SCOTUS opinion Moody v. NetChoice, LLC, which held that content promotion algorithms are a form of protected speech under the 1st Amendment. The Third Circuit extrapolated from that rule to conclude that promotion of content is first-party speech by the content host and promotor independent of the underlying content and therefore outside the protection of Section 230.
Notably, the court reached its conclusion specifically because TikTok had promoted the challenge to Nylah without prompting from Nylah. The court left open the question as to whether it could be held liable for serving up Blackout Challenge content in response to a search query entered by the user.
Implications for Section 230 Immunity
The Anderson v. TikTok decision represents an unexpected departure from previous rulings in which courts routinely granted Section 230 immunity to platforms, even in cases where their algorithms played a central role in amplifying harmful content. The ruling opens the door for plaintiffs to challenge platforms for the ways in which their algorithms promote or facilitate the spread of dangerous content.
TikTok was able to leverage the adverse decision to seek a stay while they contemplated petitioning the Supreme Court to overturn the order denying dismissal. However, they ultimately indicated their decision not to file the petition for certiorari and the order now stands as precedent in the Third Circuit. While it only applies in the Third Circuit, it lays a foundation for other circuits to adopt similar rulings.
The Future of Social Media Liability
The Anderson case has sparked widespread debate about the role of social media platforms in curating and moderating content. Critics of Section 230 argue that the law provides insufficient accountability for platforms, particularly when it comes to the promotion of harmful content via algorithms. Advocates for platform immunity, however, fear that such rulings could lead to stifling content moderation and increased litigation.
Section 230 was originally adopted in response to seemingly contradictory case law where content hosts like social media companies could be held liable if they created community standards. In the 1991 case Cubby v. CompuServe, the Southern District of New York concluded that online service providers may be held liable for content created by users if they exercised significant editorial control prior to content distribution and had knowledge or reason to know of the objectionable content. In 1995, the New York Supreme Court determined that an online service provider could be held responsible for user content because it exercised editorial control over its online bulletin board system.
Fearing that these two decisions would incentivize online service providers to take a completely hands-off approach to community moderation and community standards, Congressmen Ron Wyden and Christopher Cox proposed the Communications Decency Act to promote self-regulation while limiting liability for online service providers. This bill was virtually unopposed in the house, passing 420 to 4.
Since its passage, online service providers and social media companies have relied on its broad protections to avoid liability for everything from defamation to hosting terrorism-related content. The Anderson v. TikTok decision is expected to have lasting effects on how courts view social media platforms’ responsibilities, however, particularly in relation to their algorithms. Social media companies will likely be reviewing their options for screening potentially dangerous content from promotional algorithms. As this ruling persists, the legal community will likely see more challenges to Section 230 and algorithmic promotion, potentially redefining the scope of platform immunity.
Conclusion
The Anderson v. TikTok decision marks a critical juncture in the ongoing debate over the balance between free speech, platform immunity, and the safety of users, particularly minors. The ruling highlights that platforms may not be quite as immune as previously believed when their algorithms actively promote dangerous or harmful content. As the legal system continues to grapple with these issues, the outcome of Anderson v. TikTok could be a precursor to further challenges to Section 230 immunity, setting the stage for a new era of accountability for social media platforms. Judge Matey’s concurring-in-part and dissenting-in-part opinion is worth special note. Judge Matey sharply critiques the expansion of Section 230 protections since the CDA’s enactment, indicating growing frustration with the shield’s broad application and potentially laying a foundation for reducing its assumed breadth, possibly even overturning prior case law.
About the Author: Stuart Leijon is an associate attorney at Chernoff Vilhauer LLP Intellectual Property Law in Portland, Oregon. His practice focuses on litigation, intellectual property, privacy, and licensing. Questions or comments? Contact information for Stuart can be found at https://www.chernofflaw.com/stuart-b-leijon
This article was drafted with the assistance of artificial intelligence.