Another TikTok Case that Could Determine The Future of Internet Law
Despite dealing with a potential ban, TikTok's other legal battle could reinterpret Section 230 and reshape the Internet.
The United States Supreme Court may soon hear a TikTok case that could set a vital nationwide precedent for online speech law. But it’s probably not the case that you’re thinking about.
The legal and technology world has been focused on the fallout from the Supreme Court’s decision last week to uphold a law requiring TikTok to find a new owner or shut down. But a separate TikTok case could determine the fate of Section 230, a 1996 law on which many online platforms have built their business models.
Last August, the United States Court of Appeals for the Third Circuit ruled against the company in Anderson v. TikTok. The tragic case arose out of “Blackout Challenge” videos, which depict TikTok users engaging in self-asphyxiation. Ten-year-old Nylah Anderson watched a video and unintentionally hanged herself. Anderson’s mother sued TikTok under state tort law, including negligence.
A Pennsylvania district court judge dismissed the case under Section 230, which immunizes online services such as TikTok from claims that arise from third-party content. For nearly three decades, Section 230 has been key to the strategic growth of social media platforms, search engines, and other online services that rely on user-generated content. The law also has attracted critics who believe that online platforms should be liable for harmful user content.
This lawsuit focused not only on the user content, but on the TikTok algorithm that allegedly caused the Blackout Challenge video to appear on Nylah’s For You Page. Still, other courts, including appeals panels in the Second and Ninth Circuits, have held that Section 230 protects platforms from claims arising from algorithmic promotion or amplification of user content.
The Third Circuit panel that heard the appeal of Anderson v. TikTok disagreed with those other courts and reversed the Pennsylvania judge’s dismissal of the case. Section 230 does not apply, the panel reasoned, because in a 2024 case, Moody v. NetChoice, the Supreme Court ruled that the First Amendment protects platforms’ content moderation decisions. The majority wrote:
“Given the Supreme Court’s observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others' content via their expressive algorithms, it follows that doing so amounts to first-party speech under § 230, too.”
The Third Circuit refused TikTok’s request for an en banc rehearing, so TikTok is preparing to file a cert petition with the Supreme Court. The petition would have been due this week, but TikTok recently obtained an extension to Feb. 20. In an indication of the case’s importance, TikTok has hired former Solicitor General Paul Clement to represent it at the Supreme Court.
In his request for an extension to submit a cert petition, Clement previewed his argument: that the Third Circuit opinion goes against Section 230 interpretations in many other circuits and that Moody v. NetChoice had nothing to do with Section 230. He wrote:
“NetChoice simply accepted the industry’s argument that websites engage in First Amendment protected editorial judgment in deciding whether and how to display content. It did not hold that third-party speech becomes a website’s own speech simply because the website displays and organizes it.”
Although the Supreme Court declines to grant the vast majority of cert petitions that it receives, this petition might be tough to decline due to the circuit split that the Third Circuit created. The Supreme Court has never interpreted the scope of Section 230.
In 2023, it granted cert in Gonzalez v. Google, but resolved the case without interpreting Section 230. “You know, these are not like the nine greatest experts on the internet,” Justice Elena Kagan said during oral argument in Gonzalez. Despite that, these nine justices may have no choice but to decide the fate of a vital internet law.
Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the author of the new book Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.