Three Judges Told Us the Law Was Wrong. Then They Applied It.
Doe v. Meta, Section 230, and what we’re taking to the Supreme Court.
We filed this case in December 2021 on behalf of two Rohingya women — an ethnic minority historically subjected to discrimination and violence — who fled Burma after their villages were attacked. They allege that Meta’s algorithms took anti-Rohingya incitement and delivered it to the people most likely to act on it, and that Meta kept doing it after journalists, academics, and humanitarian groups warned the company what was happening. The people who investigated the genocide reached the same conclusion. The chair of the United Nations fact-finding mission on Burma said Facebook played a determining role in the violence, and Amnesty International concluded that Meta’s practices helped ignite it, “lit a match amidst a tinderbox of simmering ethnic tensions.” On April 28, 2026, the Ninth Circuit affirmed the dismissal of their claims. The vote was 3–0. Every judge on that panel also wrote or joined an opinion saying the law they had just applied is wrong.
On August 17, the full court declined to look again. So we are taking it to the Supreme Court.
What Section 230 actually says
Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1), says that no provider of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider. Courts have read those words to immunize internet companies from claims involving advertising scams, harassment, discrimination, human trafficking, terrorism, and, here, genocide.
A unanimous decision that no judge on the panel agreed with
A three-judge panel cannot overrule its own circuit’s precedent. Only the full court sitting en banc can do that, or the Supreme Court. That is how a panel writes an opinion it believes is wrong, and it is what happened here.
Judge Nelson wrote the opinion. He then wrote separately to say that the Ninth Circuit has over-read Section 230, straying from the original public meaning of the statutory text and creating an all-purpose liability shield for internet platforms.
Judge Berzon, joined by Judge Fletcher, wrote that if she were not bound by circuit precedent she would hold that “publisher” under Section 230 reaches only traditional activities of publication and distribution, and does not include activities that promote or recommend content or connect users to each other. She had said the same thing five years earlier in Gonzalez v. Google. This time she added a sentence:
“I again — even more emphatically on this go round — urge this Court to reconsider en banc our precedent extending section 230 immunity to recommendation of content and connections to users.”
Doe 1 v. Meta Platforms, Inc., No. 24-1672 (9th Cir. Apr. 28, 2026) (Berzon, J., concurring).
Three judges. Three opinions. One holding that none of them defended on the merits.
We asked the full court to reconsider. On August 17, 2026, it declined. Judge Fletcher and Judge Berzon recommended granting rehearing, Judge Nelson voted to deny, and the order records that no judge of the full court requested a vote on whether to rehear the case. Two of the three judges who heard this argument asked their colleagues to take another look at the precedent, but nobody did.
How far this precedent has drifted from the text
Section 230 turns on one word, and that word has been asked to do a great deal of work it was never given.
At common law, publishers and distributors were different things. A publisher could be held strictly liable for what it communicated. A distributor, a bookstore or a newsstand, was liable only if it knew or had reason to know the material was unlawful. Congress wrote one of those two words—publisher—into Section 230. The Ninth Circuit has read it to cover both, calling the difference a distinction without a difference. Justice Thomas has questioned that reading. So have Judge Gould and Judge Nelson on the Ninth Circuit, Judge Matey on the Third, and seven judges of the Fifth Circuit dissenting from a denial of rehearing en banc in Snap.
The same word has also been stretched to cover recommending, and there the Third Circuit disagrees. In Anderson v. TikTok (2024) it held that a platform’s recommendations are the platform’s own expressive activity, relying on Moody v. NetChoice, where the Supreme Court held that a platform’s choices about how to order and display content are its own expressive choices. The Ninth Circuit calls the same conduct publishing, on precedent that predates Moody. In a footnote, the Third Circuit acknowledged that its holding may depart from the views of other circuits, and cited the Ninth Circuit case by name.
That is a real circuit split. The Third Circuit and the Ninth Circuit now read the same word in the same statute to mean opposite things, and the word they disagree about essentially governs the internet.
Why we’re doing this with Stanford’s Supreme Court Litigation Clinic
We are preparing the petition with the Stanford Supreme Court Litigation Clinic. It was the first clinic of its kind at any law school, it passed its twentieth year in operation, and its faculty have collectively argued dozens of cases before the Court. Students and faculty work on real petitions, briefs in opposition, and merits briefs, and the clinic has represented parties as lead counsel in more than sixty merits cases.
Exactly how the petition frames all of this is the work in front of us right now. On our side, it runs through the firm’s Issues & Appeals group: Roger Perlstadt, who argued the appeal in the Ninth Circuit, and Ryan D. Andrews, who leads the group.
Why Edelson PC
Edelson PC is a plaintiffs’ firm founded in 2007, with offices in Chicago, San Francisco, Boulder, Washington DC, Los Angeles, and Pasadena. We are lead counsel for the Rohingya refugees in this case in the district court and on appeal to the Ninth Circuit, with our co-counsel Fields Han Cunniff PLLC.
We have taken on Meta before. We filed the first class action against Facebook under the Illinois Biometric Information Privacy Act, which settled on the eve of trial for $650 million, the largest single-state consumer privacy settlement in U.S. history. The firm has secured more than $5 billion as lead counsel and has played a leadership role in cases recovering more than $45 billion overall.
The petition itself is the kind of work our Issues and Appeals Group does every day: cases of first impression, carried from state appellate courts all the way to the Supreme Court of the United States. We were lead counsel in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), in which the Court recognized that intangible harms and the risk of future harm can establish standing to sue in federal court.
This case is handled through the firm’s Public Impact Group, which directs half of the attorneys’ fees from public-impact matters to nonprofit organizations working in the affected communities; the other half is reinvested in the group’s public-interest work.
Contact
Press inquiries: press@edelson.com.
If you work with Rohingya communities in the United States, or you are following the Section 230 question for an organization with an interest in it, we would like to speak with you. hello@edelson.com.
FAQ
What is Doe v. Meta?
Doe v. Meta Platforms is a lawsuit filed in December 2021 in the Northern District of California on behalf of Rohingya refugees who fled Burma (Myanmar) after their villages were attacked. The plaintiffs allege that Facebook’s recommendation algorithms amplified anti-Rohingya incitement and delivered it to the people most likely to act on it, and that Meta continued doing so after being warned. Edelson PC is lead counsel, with co-counsel Fields Han Cunniff PLLC.
Why was the case dismissed?
Under Ninth Circuit precedent, Section 230 immunizes a platform for recommending third-party content, not only for hosting it. Each judge on the panel wrote or joined a separate opinion questioning that precedent, but a panel cannot overrule the circuit’s earlier decisions.
What happens next in Doe v. Meta?
On August 17, 2026, the Ninth Circuit declined to rehear the case en banc. Edelson PC is now preparing a petition for a writ of certiorari asking the Supreme Court to hear the case, working with the Stanford Supreme Court Litigation Clinic.
Who represents the Rohingya plaintiffs?
Edelson PC is lead counsel, with co-counsel Fields Han Cunniff PLLC. The case is currently on appeal to the U.S. Supreme Court and we are preparing the petition with the Stanford Supreme Court Litigation Clinic.