Carving Out Exceptions: The Ninth and Third Circuits’ Limits on § 230 Immunity—Necessary Reform or Judicial Overreach?

Yuta Inada*

Concerns about safety on social media has recently led to calls for regulation against Big Tech companies. As Congress deliberates on the best way to approach such regulation, plaintiffs have tried to utilize current laws to hold these companies liable for content on their platforms. However, they have faced difficulties in litigating their claims due to the broad immunity given to Big Tech companies via § 230 of the Communications Decency Act. Many scholars and lawmakers generally agree that § 230 must be reformed in some way. Some argue for broad change, while others take a more nuanced approach. Regardless of which camp one stands in, one thing is for certain—the debate does not focus on who should make that change. Recently, the Ninth and Third Circuits created and upheld legally questionable exceptions to § 230 to prevent Big Tech defendants from avoiding liability for content posted on their platforms. Although these courts were likely worried about the broad immunities § 230 provided to these companies, this Note argues that their “judicial lawmaking” will have very serious unintended consequences that create confusion in the law and harm the relationship Big Tech platforms have with their users without providing meaningful redress for victims. It is imperative for the Supreme Court to intervene to prevent more appellate courts from creating their own exceptions to the statute and for Congress to fulfill its duty to amend § 230 and limit the almost unqualified immunity that Big Tech companies currently possess. This Note suggests that Congress do so through a limited notice-and-takedown system.

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*J.D. Candidate, Notre Dame Law School, 2026; L.L.B., Hitotsubashi University [一橋大学], 2023. Thank you to Professor Diane A. Desierto and everyone at the Notre Dame Global Human Rights Clinic for helping me think through this issue. Thank you to Professor Roger P. Alford for supervising me through this process. Thank you to all my friends and family for supporting me throughout law school. And finally, a special thanks to the Castellanets for the generosity and kindness they have shown me throughout law school and beyond. All errors are my own.