1/9
CA3 says Sec 230 doesn’t protect TikTok and ByteDance for creating an algorithm that fed the “Blackout challenge” to a 10yo who then tried it and accidentally hanged herself.
https://www2.ca3.uscourts.gov/opinarch/223061p.pdf
Panel (Obama, Trump, Trump) relies on SCOTUS opinions from Moody v NetChoice.
2/9
The panel says Moody changes the whole ballgame re algorithms and 230:
3/9
One of the Trump appointees writes separately to build on Justice Thomas’s view that courts’ expansive application of 230 is far afield from its purpose and the context in which it was enacted:
4/9
Judge Matey goes on to more fully explicate what he sees as 230’s publisher/distributor distinction re liability, which the majority opinion declined to address:
5/9
Matey departs from the panel majority because the majority believes Moody changed how courts should analyze 230 re algorithms, while Matey—like Thomas—believes 230 never protected platforms for distributing content they know opens them up to legal liability:
6/9
Which is why Matey distinguishes the controlling CA3 precedent rather than say, like the majority, that SCOTUS abrogated it:
7/9
As should be obvious by the time you read to this point, but my initial tweet wrongly suggested Matey also joined the panel majority’s Moody analysis. He did not, but he did side with them on the bottom-line that TikTok and ByteDance don’t have 230 immunity for claim at issue.
8/9
The irony: the same reasoning that affirmed the platforms' 1A protection abrogated their 230 protection
9/9
But see
To post tweets in this format, more info here: https://www.thecoli.com/threads/tips-and-tricks-for-posting-the-coli-megathread.984734/post-52211196