Meta’s Litigation Shield Under Fire in Massachusetts Court (1)

Meta Platforms’ claim to blanket immunity from youth addiction litigation landed with little traction before Massachusetts’ top appeals court, with justices pressing the Instagram parent on how its features qualify as protectable publishing activity.

The oral arguments Friday before the Massachusetts Supreme Judicial Court marked the first state high court to hear Meta’s claim to immunity under Section 230 of the Communications Decency Act for claims that it fueled youth addiction to Instagram through decisions that one justice described as feeding into teens’ “fear of missing out.”

The justices struggled to see how allegations were so easily preempted, as Meta claimed, by the federal statute that effectively blocks litigation against website operators for publishing third-party content.

“It’s not a way to publish,” said Associate Justice Scott L. Kafker. “It’s how to attract the eyeballs. It’s indifferent to content, right? It doesn’t care if its Thomas Paine’s Common Sense or nonsense. It’s just, it’s totally focused on getting you to look at it.”

The high court’s skepticism of Meta’s first-line defense to the claims comes weeks before the US Court of Appeals for the Ninth Circuit is set to wrestle with the same litigation shield in a multi-district litigation case involving Meta’s Facebook and Instagram, Alphabet’s YouTube, ByteDance’s TikTok, and Snap’s Snapchat.

The Massachusetts litigation, brought by its attorney general Andrea Campbell (D), targets Instagram’s incessant notifications and alerts, infinite scroll and autoplay elements, disappearing ephemeral posts, and intermittent variable reward programming as features designed to hook youth with dopamine hits. A trial court rejected Meta’s arguments that the design features were publishing decisions protected by Section 230 and the First Amendment.

Algorithms ‘Stimulate Looking’

Meta’s argument that its notifications were simply the platform’s protected republication of third-party likes and messages to users didn’t appear to convince some justices.

“The third party isn’t actually creating the content that you’re pushing to the kids,” Associate Justice Gabrielle Wolohojian told Meta’s attorney, Mark Mosier of Covington & Burling LLP. The judge asked why Meta’s retransmission of the fact of a like through a notification fits into the structure of Section 230 protection when its Meta’s decision.

Mosier compared the notification to a magazine’s decision to summarize and describe all the articles within the publication. Wolohojian responded that the notifications seem more like advertising than an extension of Meta’s third-party publishing.

Multiple times Mosier responded that even if features were found to be outside the boundaries of Section 230, they’d qualify as Meta’s own speech protected under the First Amendment. But the justices insisted they were only considering the Section 230 defense, due to unique circumstances of the mid-litigation appeal.

In one exception, Kafker pressed whether algorithms that merely “stimulate looking,” rather that expressively curating content for users, would qualify for the constitutional protection.

He cited Justice Amy Coney Barrett’s 2024 concurrence in Moody v. NetChoice, which questioned whether the First Amendment is implicated if a “platform’s owners hand over the reins to an AI tool” and concluded “the way platforms use this sort of technology might have constitutional significance.”

Greatest Publisher on Earth

The state told the panel that Section 230’s sweep isn’t as broad as Meta would like.

Massachusetts state solicitor David Kravitz explained the law’s reference to claims that bar treating online platforms as publishers of third-party content is a reference to common law publisher liability where a publisher is held liable for harm caused by the third-party content, not the common sense analogy of a social media platform to a print publisher.

“There’s a critically and legally really important distinction between engaging in publication activity and being treated as a publisher,” Kravitz said, noting the trial court referenced this distinction to limit Meta’s claim to immunity.

The distinction appeared lost on the panel at least initially, with Kafker asking why Meta, “the greatest publisher on Earth,” through its “super publishing” of all its users content doesn’t fit the bill for being treated as a publisher.

Congress through Section 230 only cleared the online platforms’ publishers liability, Kravitz responded. “The words ‘treated as a publisher,’ it’s a term of art.”

Meta spokesman Aaron Simpson said Friday in an emailed statement that the company is “confident the evidence will show our longstanding commitment to supporting young people.”

Chief Justice Kimberly Budd, and associate justices Frank Gaziano, Dalila Argaez Wendlandt, and Serge Georges Jr. also sat on the panel.

Meta is also represented by Wilmer Cutler Pickering Hale & Dorr LLP.

The case is Commonwealth v. Meta Platforms Inc., Mass., SJC-13747, arguments held 12/5/25.