What's the future of the Communications Decency Act in the 9th Circuit?

Last week, the Ninth Circuit in Jane Doe 1 v. Meta Platforms, Inc. concluded that Meta was immune from suit for allegedly provoking the Myanmar genocide due to the Facebook algorithm. For anyone who has been following social media litigation for the past few decades, this may not sound very newsworthy because the Communications Decency Act has often protected social media companies. But it gets more interesting.

For a quick doctrinal background: Section 230 of the Communications Decency Act is the primary liability shield for social media platforms. Section 230 protects: “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat . . . as a publisher or speaker (3) of information provided by another information content provider.” Historically, courts have treated many websites and social media platforms as “publishers,” not “content providers,” because they are merely disseminating content created by others.

In Doe v. Meta, like in many cases before it, the panel concluded that Facebook was a publisher that merely disseminated the posts of others, and thus was immune under Section 230. This wasn’t new. But unlike prior cases, all three judges joined separate concurrences urging the Ninth Circuit to take the case en banc to rethink circuit precedent and narrow the scope of Section 230 immunity. This would mean a group of 11 active judges selected at random could vote to overturn circuit precedent.

So, if that happens, where does the potential en banc pool currently stand? I did a review of each active judge’s history on Section 230 to see what I could find (plus Judge Berzon and Judge Fletcher, who sat on the Doe v. Meta panel and are therefore eligible to sit on the en banc court). Here’s the summary:

• Strong Votes to Narrow: 4. These are judges have written or joined opinions urging for Section 230 to be narrowed.

• Weak Votes to Narrow: 6. These are judges have demonstrated a willingness to narrow Section 230 in distinguishable cases.

• Weak Votes to Maintain Precedent: 3. These are judges that have indicated approval for current Section 230 immunity, but either in distinguishable contexts or with some willingness to narrow Section 230 in distinguishable cases.

• Strong Votes to Maintain Precedent: 3. These are judges that have strongly indicated a preference for Section 230 immunity.

• Unclear Votes: 15.

Obviously, this isn’t as informative as one might like, given how many unclear votes there are. Even so, having a decent read on 16 of the 31 eligible judges isn’t terrible. Based on the information we have, I would rather be the party challenging Section 230 immunity.

For those readers who really want a judge-by-judge breakdown of the numbers, here’s what my conclusions are based on:

Strong Votes to Narrow

• Judge Berzon: Wrote a concurring opinion in Doe v. Meta asserting that “the term ‘publisher’ under section 230 reaches only traditional activities of publication and distribution—such as deciding whether to publish, withdraw, or alter content—and does not include activities that promote or recommend content or connect content users to each other.”

• Judge Fletcher: Joined Judge Berzon’s concurring opinion in Doe v. Meta.

• Judge Gould: Wrote a concurrence and dissent in Gonzalez urging for Section 230 to be narrowed, arguing that social media companies can be liable for their algorithms. He also voted to rehear the case en banc.

• Judge Nelson: Wrote separately in Doe v. Meta endorsing Judge Berzon’s opinion about the proper legal standard.

Weak Votes to Narrow

• Judge Callahan: Joined Barnes v. Yahoo!, No. 05-36189 (May 7, 2009), which barred negligence liability but allowed a promissory estoppel claim. This does not give much indication of his views on the current state of the law.

• Judge Collins: Dissented in Children’s Health Defense v. Meta Platforms, Inc., No. 16210 (Aug. 9, 2024), suggesting that the Ninth Circuit’s broad construction of Section 230 had been subject to “substantial criticism,” and expressed that he was bound by circuit precedent.

• Judge Forrest: Wrote the opinion in Doe v. Twitter, No. 24-177 (Aug. 1, 2025), holding that platforms could not be held liable for failing to remove child pornography, seemingly opposed to holding platforms responsible for anything that would require them to monitor their platforms. But denied Section 230 immunity for product liability claims based on defective reporting infrastructure.

• Judge Nguyen: Wrote an opinion in HomeAway.com, Inc. v. Santa Monica, No. 18-55367 (March 13, 2019), concluding that a local ordinance was not preempted by Section 230 when Santa Monica limited the short-term rental market. Also joined the opinion in Calise v. Meta Platforms, No. 22-15910 (June 4, 2024), allowing contract claims notwithstanding Section 230.

• Judge Sanchez: Joined Judge Forrest’s opinion in Doe v. Twitter.

• Judge Wardlaw: Wrote an opinion in Lemmon v. Snap, Inc., No. 20-55295 (May 4, 2021), holding that Snap could be liable for product liability without running afoul of Section 230, because this would be liability as the manufacturer of a product, not a publisher or speaker. This is not directly urging for Section 230 to be narrowed, but it shows a willingness to cabin the statute.

Weak Votes to Maintain Precedent

• Judge Friedland: Joined Long v. Dorset, No. 20-15036 (Apr. 23, 2021), which upheld immunity in a memorandum opinion.

• Judge Miller: Authored Children’s Health Defense, where he suggested that social media platforms may not be able to operate at the current scale without Section 230.

• Judge Rawlinson: Joined Dryoff v. The Ultimate Software Group, No. 18-15175 (Aug. 20, 2019), immunizing a social media platform from interactions by users that led to a drug transaction.

Strong Votes to Maintain Precedent

• Judge Bade: Joined the opinion in Doe v. Grindr, No. 24-475 (Feb. 18, 2025), which indicated broad support for immunity when Grindr allegedly failed to suppress matches and communication between minors and adults on the platform.

• Judge Bress: Joined King v. Facebook, No. 22-15602 (Aug. 18, 2023), which was a memorandum opinion specifically distinguishing Barnes and broadly applying immunity.

• Judge Christen: Wrote the opinion in Gonzalez v. Google, 18-16700 (June 22, 2021). Appears to support broad Section 230 immunity.

Unclear

• Judge Bennett

• Judge Bumatay

• Judge de Alba

• Judge Desai

• Judge Johnstone

• Judge Koh

• Judge Lee

• Judge Mendoza

• Judge Murguria

• Judge Owens

• Judge Smith

• Judge Sung

• Judge Tung

• Judge VanDyke

Just for fun, I ran a Monte Carlo simulation with Claude to gauge the likely outcome of an en banc review with these numbers. The default probability is 59% chance that Section 230 gets narrowed, but it swings between 42% and 75% based on all the uncertainty. Judge Murguria’s views are the most important because she always sits on the en banc court as Chief Judge. With a 30% chance that she supports narrowing, the odds drop to 53%, but with a 70% chance she supports narrowing, the odds shift to 63%.

At the end of the day, we’re still working with a rough coin flip, with a slight lean towards narrowing. What happens next is anyone’s guess.