Petition for Writ of Certiorari — Meta Platforms, Inc., fka Facebook, Inc., et al., Petitioners v. Eighth Judicial District Court of Nevada, Clark County, et al.
Supreme Court briefAug 7, 2026
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No.
In the Supreme Court of the United States
META PLATFORMS, INC. AND INSTAGRAM, LLC,
PETITIONERS ,
v.
EIGHTH JUDICIAL DISTRICT COURT OF NEVADA,
CLARK COUNTY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF NEVADA
PETITION FOR A WRIT OF CERTIORARI
MARK W. MOSIER
KENDALL T. BURCHARD
COVINGTON &
BURLING LLP
850 Tenth Street, NW
Washington, DC 20001
KRISTIN A. L INSLEY
GIBSON, DUNN
& CRUTCHER LLP
One Embarcadero Center
Suite 2600
San Francisco, CA 94111
JEFFREY B. WALL
Counsel of Record
JONATHAN C. BOND
MORGAN L. RATNER
JESSICA L. WAGNER
JEFF L IU
GIBSON, DUNN & CRUTCHER LLP
1700 M Street NW
Washington, DC 20036
(202) 955-8500
jwall@gibsondunn.com
PATRICK J. FUSTER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
QUESTIONS PRESENTED
1. Whether the prohibition in Section 230(c)(1) of
the Communications Decency Act on “treat[ing]” an
online service provider “as the publisher or speaker of
any information provided by another information content provider” bars claims that would impose liability
for editorial decisions about how to publish third-party
content.
2. Whether the First Amendment protects editorial decisions about how to publish third-party content.
(I)
PARTIES TO THE PROCEEDINGS
Petitioners Meta Platforms, Inc. and Instagram, LLC
are defendants in the district court and were petitioners
in the state supreme court. Respondents Eighth Judicial
District Court of Nevada, Clark County and District
Judge Joanna Kishner were nominal respondents in the
state supreme court. Respondent State of Nevada is
plaintiff in the district court and was real party in interest
in the state supreme court.
(II)
RULE 29.6 DISCLOSURE STATEMENT
Petitioner Meta Platforms, Inc. is a publicly traded
company (NASDAQ: META). Meta Platforms, Inc. has
no parent company, and no publicly held corporation
owns 10% or more of its stock. Petitioner Instagram,
LLC is a wholly owned subsidiary of Meta Platforms, Inc.
(III)
RELATED PROCEEDINGS
Eighth Judicial District Court of Nevada,
Clark County:
State v. Meta Platforms, Inc.,
No. A-24-886110-B
(Nov. 6, 2024) (denying motion to dismiss)
State v. Meta Platforms, Inc.,
No. A-24-886115-B
(Nov. 14, 2024) (denying motion to dismiss)
State v. Meta Platforms, Inc.,
No. A-24-886120-B
(Nov. 15, 2024) (denying motion to dismiss)
Supreme Court of Nevada:
Meta Platforms, Inc. v. Eighth Judicial District
Court of Nevada, Clark County,
Nos. 89920, 89921, 89922
(Apr. 24, 2026) (denying original petitions for
writs of mandamus and prohibition)
(IV)
TABLE OF CONTENTS
Page
Introduction ................................................................... 1
Opinions below ............................................................... 5
Jurisdiction .................................................................... 6
Constitutional and statutory provisions involved ....... 6
Statement of the case .................................................... 6
A. Factual background ............................................ 6
B. Proceedings below ............................................... 8
Reasons for granting the petition .............................. 10
I. The decision below is wrong ................................... 12
A. Section 230 protects online service
providers’ editorial decisions about how to
publish third-party content .............................. 13
B. The First Amendment protects editorial
decisions about how to publish content ........... 18
II. The decision below warrants review .................... 24
A. The decision below implicates splits about
both Section 230 and the First Amendment ... 24
B. The questions presented are exceptionally
important ............................................................ 32
III. This case is an excellent vehicle .......................... 34
Conclusion .................................................................... 37
Appendix A — State supreme court opinion
(Apr. 24, 2026).......................................................... 1a
Appendix B — District court order on motion
to dismiss (Instagram) (Nov. 15, 2024) ............... 11a
(V)
VI
Appendix C — District court order on motion
to dismiss (Facebook) (Nov. 14, 2024) ................. 27a
Appendix D — District court order on motion
to dismiss (Messenger) (Nov. 6, 2024)................. 43a
Appendix E — Complaint (Instagram)
(Jan. 30, 2024) ........................................................ 58a
Appendix F — Constitutional and statutory
provisions involved ...............................................221a
TABLE OF AUTHORITIES
Page(s)
Cases:
303 Creative LLC v. Elenis,
600 U.S. 570 (2023)................................................... 20
Anderson v. TikTok, Inc.,
116 F.4th 180 (3d Cir. 2024)........................ 28, 29, 31
Arkansas Educational Television
Comm’n v. Forbes,
523 U.S. 666 (1998)............................................. 19, 20
Atlantic Richfield Co. v. Christian,
590 U.S. 1 (2020)......................................................... 6
Bragdon v. Abbott,
524 U.S. 624 (1998)................................................... 16
Brown v. Entertainment Merchants Ass’n,
564 U.S. 786 (2011).................................11, 20, 23, 30
Chiles v. Salazar,
607 U.S. 627 (2026)................................................... 21
Commonwealth v. Meta Platforms, Inc.,
277 N.E.3d 166 (Mass. 2026) ........................ 8, 28, 35
Computer & Communications Industry
Ass’n v. Paxton,
— F.4th —, 2026 WL 2130729
(5th Cir. July 24, 2026) ............................................ 31
Daniel v. Armslist, LLC,
926 N.W.2d 710 (Wis. 2019) .................................... 27
Doe v. Grindr Inc.,
128 F.4th 1148 (9th Cir. 2025) ................................ 26
Doe v. MySpace, Inc.,
528 F.3d 413 (5th Cir. 2008).............................. 26, 29
(VII)
VIII
Dyroff v. Ultimate Software Group, Inc.,
934 F.3d 1093 (9th Cir. 2019)...................... 25, 26, 29
EPA v. Calumet Shreveport Refining, L.L.C.,
605 U.S. 627 (2025)................................................... 13
Erznoznik v. Jacksonville,
422 U.S. 205 (1975)................................................... 23
Exxon Mobil Corp. v. Corporación Cimex,
S.A. (Cuba),
146 S. Ct. 1909 (2026) .............................................. 16
In re Facebook, Inc.,
625 S.W.3d 80 (Tex. 2021) ....................................... 27
FCC v. WNCN Listeners Guild,
450 U.S. 582 (1981)................................................... 14
Force v. Facebook, Inc.,
934 F.3d 53 (2d Cir. 2019) ........................... 14, 25, 29
Henderson v. Source for Public Data, L.P.,
53 F.4th 110 (4th Cir. 2022) .................................... 27
Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston,
515 U.S. 557 (1995)................................................... 21
Jane Doe No. 1 v. Backpage.com, LLC,
817 F.3d 12 (1st Cir. 2016) ................................ 15, 26
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952)................................................... 23
Keeton v. Hustler Magazine, Inc.,
465 U.S. 770 (1984)................................................... 14
Klayman v. Zuckerberg,
753 F.3d 1354 (D.C. Cir. 2014) ............................... 26
Lovell v. City of Griffin,
303 U.S. 444 (1938)............................................. 19, 21
Malwarebytes, Inc. v. Enigma Software
Group USA, LLC,
141 S. Ct. 13 (2020) .................................................. 16
IX
Marshall’s Locksmith Service Inc. v.
Google, LLC,
925 F.3d 1263 (D.C. Cir. 2019) ............................... 26
Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974).............................4, 13, 19, 20, 22
Miller v. California,
413 U.S. 15 (1973)..................................................... 33
Moody v. NetChoice, LLC,
603 U.S. 707 (2024)................... 4, 7, 11, 20, 22, 32-34
NetChoice, LLC v. Bonta,
152 F.4th 1002 (9th Cir. 2025) .......................... 30, 31
Patterson v. Meta Platforms, Inc.,
239 N.Y.S.3d 726 (App. Div. 2025) ............. 27, 30, 31
Pittsburgh Press Co. v. Pittsburgh Comm’n
on Human Relations,
413 U.S. 376 (1973)............................................. 19, 22
Reed v. Town of Gilbert,
576 U.S. 155 (2015)................................................... 21
Snyder v. United States,
603 U.S. 1 (2024)....................................................... 15
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011)................................................... 23
TikTok, Inc. v. Eighth Judicial District
Court of Nevada, Clark County,
578 P.3d 640 (Nev. 2025) ................................ 3, 9, 10,
17, 22, 29, 31
Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994)................................................... 19
U.S. Telecom Ass’n v. FCC,
855 F.3d 381 (D.C. Cir. 2017) ................................. 20
United States v. Alvarez,
567 U.S. 709 (2012)................................................... 23
X
United States v. Stevens,
559 U.S. 460 (2010)................................................... 23
Yellen v. Confederated Tribes of Chehalis
Reservation,
594 U.S. 338 (2021)................................................... 14
Zeran v. America Online, Inc.,
129 F.3d 327 (4th Cir. 1997).................................... 16
Constitutional Provision:
U.S. Const. Amend. I....................................................... 2
Statutes:
Allow States & Victims to Fight Online Sex
Trafficking Act of 2017, Pub. L. No. 115-164,
§ 4(a), 132 Stat. 1254 (2018)
(47 U.S.C. § 230(e)(5)) ............................................. 16
28 U.S.C. § 1257(a) ........................................................... 6
47 U.S.C. § 230(b)........................................................... 33
47 U.S.C. § 230(c)(1) ................................ 2, 11, 13-15, 18
47 U.S.C. § 230(e)(3) ................................................ 15, 33
47 U.S.C. § 230(f)(2) ...................................................... 15
47 U.S.C. § 230(f)(4) ...................................................... 15
Other Authorities:
Cambridge Business English Dictionary (2011)...... 14
Webster’s Third New International
Dictionary (1993)............................................... 13, 14
In the Supreme Court of the United States
No.
META PLATFORMS, INC. AND INSTAGRAM, LLC,
PETITIONERS ,
v.
EIGHTH JUDICIAL DISTRICT COURT OF NEVADA,
CLARK COUNTY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF NEVADA
PETITION FOR A WRIT OF CERTIORARI
INTRODUCTION
Publishers have always faced choices not just about
what to publish but about how to present a work to an
audience. Some publish a single edition of a complete
work, others serialize content each week, while still
others offer a dynamic array of new material daily.
Some splash a story with bright colors or bold headlines to nab readers’ or viewers’ attention; others use
staid, black-and-white text and let the content do the
talking. Publishers have made such editorial decisions
since the advent of written language. Since the 1960s,
we’ve even had a phrase for it: the medium is the message.
(1)
2
Today’s social media is no different. Online publishers, like their print-media precursors, must constantly
make editorial decisions about how to display thirdparty content—such as whether to provide a continuous stream or limited selection of content, to target a
particular audience, or to prioritize short-form over
long-form material. A vibrant online marketplace of
ideas and expression has flourished precisely because
federal law shields those judgments from interference: Section 230 of the Communications Decency Act
and the First Amendment provide mutually reinforcing protections of publishers’ editorial discretion. Section 230 prohibits “treat[ing]” an online service provider “as the publisher or speaker of any information
provided by another information content provider.”
47 U.S.C. § 230(c)(1). And of course the First Amendment enshrines established freedoms of speech and
press.
Those vital protections, however, are under attack.
Nearly every State and thousands of individual plaintiffs, local governments, and school districts have
brought suits claiming that social media has “addicted”
teenagers, who allegedly are harmed by what they encounter online. These suits seek staggering damages
for, and sweeping changes to, the design of social-media services. The plaintiffs purport to sidestep Section 230’s protection for publishing third-party content
by casting their claims as targeting online publishing
services’ “design features”—e.g., how much content
they display, how long the content appears, what specific content is accessible to younger users, and
whether and how services apprise users of content of
potential interest to them.
3
This case is a prime example. Nevada seeks damages based on the editorial decisions that shape Instagram, Facebook, and Messenger, social-media services
operated by Meta Platforms, Inc. The State alleges
that certain choices Meta makes in how it displays
third-party content—how much, for how long, and to
whom—have led some young users to “spend more
time on [Meta’s services] than they otherwise would.”
App., infra, 101a. Branding this spend-more-time outcome as “social media addiction,” e.g., id. at 146a, the
State claims that Meta violated Nevada law by using
those design features to display third-party content to
young users.
Those claims run headlong into Section 230 and the
First Amendment’s Speech and Press Clauses, but the
Nevada Supreme Court has embraced the State’s socialmedia-addiction workaround. In TikTok, Inc. v. Eighth
Judicial District Court of Nevada, Clark County, 578
P.3d 640 (Nev. 2025), the court interpreted Section 230
to bar claims only when they target “the content of
posted videos,” not “[c]ontent-neutral design features”
that “interact with third-party content.” Id. at 651. The
court also held that the design features did not implicate the First Amendment at all because, in the court’s
view, the features were not sufficiently expressive and
“shape an addictive user experience.” Id. at 652. In
this follow-on case, the court reaffirmed and applied
those holdings to reject Meta’s arguments that Section
230 and the First Amendment compel dismissal. App.,
infra, 7a-8a. The court thus held that the challenged
decisions fall outside Section 230 because they are
Meta’s editorial choices, but outside the First Amendment because they are merely Meta’s editorial choices.
Each conclusion is wrong, but both cannot be right.
4
The Nevada Supreme Court illogically limited Section 230’s protections to a publisher’s binary decision
whether to display a specific piece of content at all. But
publishers must make many decisions about how to
present that content to their audience. The State’s
claims challenging those decisions equally seek to hold
Meta liable as a publisher. The court’s contrary approach finds no support in the statutory text or context. And it places the Nevada Supreme Court on the
short side of an 8-4 conflict among federal courts of appeals and state courts on the scope of Section 230’s protections.
The Nevada Supreme Court compounded its error
by disregarding the First Amendment’s speech and
press guarantees. Those constitutional backstops have
long protected decisions about not only what content to
publish, but also how to publish it. A newspaper’s decisions about how many articles and editorials to print,
which stories deserve the front page, and how to arrange and promote related content to encourage a person to keep reading are core editorial judgments that
the First Amendment protects. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974). And
the same principle applies to new media. Moody v.
NetChoice, LLC, 603 U.S. 707, 733 (2024).
The Nevada Supreme Court departed from that
deeply rooted First Amendment tradition. Even accepting the State’s premise that its claims challenge
only Meta’s design choices and not its publication of
third-party content, the claims necessarily attack
Meta’s own editorial discretion safeguarded by the
Speech and Press Clauses. The court’s invention of a
historically ungrounded “addiction” exception to the
5
First Amendment exacerbated its error. Editorial decisions do not lose their protected character merely because the State views consumption of too much content
as potentially dangerous. In holding otherwise, the
state supreme court departed from decisions of the
Ninth Circuit and the New York Appellate Division,
which have rejected any such exception.
Both issues warrant this Court’s review in this case.
Confusion in the lower courts about the scope of Section 230 and the First Amendment has invited the proliferation of suits seeking to impose liability for online
service providers’ editorial decisions. The resulting
patchwork of conflicting obligations is untenable and at
odds with the judgments Congress and the Framers
enshrined in Section 230 and the First Amendment.
This case also presents an ideal vehicle to resolve the
confusion. It raises both questions together in a case
where the questions are outcome determinative and
were addressed as purely legal rulings in an as-applied
posture. The Court is unlikely to see a comparably
suitable vehicle anytime soon, and its intervention is
needed now. The petition for a writ of certiorari should
be granted.
OPINIONS BELOW
The opinion of the state supreme court (App., infra,
1a-10a) is not published in the Pacific Reporter but is
available at 2026 WL 1129147. The orders of the trial
court denying Meta’s motions to dismiss in the Instagram case (App., infra, 11a-26a), Facebook case (id. at
27a-42a), and Messenger case (id. at 43a-57a) are not
reported.
6
JURISDICTION
The state supreme court issued its judgment on
April 24, 2026. On July 6, 2026, Justice Kagan extended
the time within which to file a petition for a writ of certiorari to and including August 10, 2026. This Court has
jurisdiction under 28 U.S.C. § 1257(a). See Atlantic
Richfield Co. v. Christian, 590 U.S. 1, 12 (2020).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Relevant provisions are reproduced in the appendix.
App., infra, 221a-225a.
STATEMENT OF THE CASE
A. Factual Background
Meta owns and operates Instagram, Facebook, and
Messenger, three services that organize and display a
diverse array of user-generated content, including videos, photos, and messages. App., infra, 59a; Compl.
¶ 2, A-24-886115-B D. Ct. Doc. 1 (Jan. 30, 2024) (Facebook Compl.); Compl. ¶ 2, A-24-886110-B D. Ct. Doc. 1
(Jan. 30, 2024) (Messenger Compl.).* Instagram and
Facebook permit users to share their own photos, videos, and thoughts for others to see. App., infra, 72a;
Facebook Compl. ¶ 37. Users can also explore content
posted by other users and interact with that content
by, for example, liking or commenting on posts. App.,
infra, 72a; Facebook Compl. ¶ 37. Messenger is Meta’s
* Because this case arises at the pleadings stage, the background draws on the facts alleged in the State’s three substantially similar complaints, each targeting a different Meta service.
See pp. 8-9, infra. The Instagram complaint, App., infra, 58a-220a,
is illustrative.
7
instant-messaging service that allows Facebook users
to send messages and other content directly to others.
Messenger Compl. ¶¶ 37-38.
Meta must constantly organize a massive amount of
third-party content on its services. As this Court recently recognized, “Facebook users, for example, share
more than 100 billion messages every day.” Moody,
603 U.S. at 719. Meta does not publish a jumbled
hodgepodge of posts on every conceivable topic from
every user (and would not be very popular if it did). It
instead exercises editorial judgment about how to organize and prioritize the content and to which users it
will be displayed, including based on “views, likes, dislikes, reactions, and comments received on content.”
App., infra, 109a; see id. at 104a n.93.
Meta makes further editorial judgments about how
to display third-party content. For example, instead of
imposing an arbitrary “endpoint” (say, 20 photos or 15
videos) that limits what users can view in one sitting,
Meta displays content with “endless scroll” and “autoplay” features that enable users to view content continuously without taking any special action (beyond
scrolling down or keeping a video player open). App.,
infra, 103a-105a. Meta also presents some user content indefinitely while publishing other content for only
a short period by allowing users to time-limit their contributions. Id. at 122a (Instagram users may post “Stories” that disappear after “24 hours”). And Meta sends
notifications to users that particular third-party content has become available. Id. at 125a-127a.
8
B. Proceedings Below
1. Since 2022, nearly every State, the District of Columbia, numerous local governments and school districts, and private plaintiffs across the country have
filed lawsuits against social-media companies, alleging
that various design features have caused young users
to become addicted to social media. Some States filed
suit together in federal court (now coordinated with
other cases in multidistrict litigation). Compl., Arizona v. Meta Platforms, Inc., No. 23-cv-5448 (N.D. Cal.
Oct. 24, 2023); In re Social Media Adolescent Addiction/
Personal Injury Products Liability Litigation,
No. 22-md-3047 (N.D. Cal.). Other States have chosen
to bring individual suits in their own courts. E.g., Commonwealth v. Meta Platforms, Inc., 277 N.E.3d 166,
171-173 (Mass. 2026).
Nevada chose the latter course. In 2024, it filed
three complaints (one each for Instagram, Facebook,
and Messenger) against Meta and a subsidiary, Instagram, LLC, in Nevada state court. App., infra, 12a n.1.
The State alleges (as relevant) that Meta’s editorial
choices concerning how to display third-party content
made its social-media services “addictive,” meaning
that young users “spend more time on [Meta’s services]
than they otherwise would.” Id. at 62a, 101a. According to the State, such “addictive” design elements—including endless scroll, autoplay, “ephemeral” content
that appears for only a short period, the display of user
likes and other reactions, and the use of notifications—
harmed the well-being and development of the services’ young users. Id. at 141a-161a. The State alleges
that Meta’s design features increase some young users’
“expos[ure] to inappropriate, harmful,” or “triggering
9
content,” such as “negative body image-related content” and “‘like’ counts.” Id. at 106a, 112a, 147a. The
State asserts six state-law causes of action (identical
across the complaints): unconscionable trade practices,
design defect, negligence, unjust enrichment, failure to
warn, and deceptive practices. Id. at 207a-218a.
2. Meta moved to dismiss all three cases based on
Section 230 and the First Amendment. Across three
materially identical orders, the district court denied
Meta’s motions in relevant part. App., infra, 11a-57a.
The court rejected Meta’s argument that the State’s
claims would “impermissibly impose liability on Meta
for deciding how and what third-party content to publish,” reasoning that Section 230 does not apply to
claims that “concern the design of” Meta’s services rather than any particular piece of third-party content.
Id. at 20a-21a, 36a-37a, 51a-52a. The court then rejected Meta’s First Amendment defense on the theory
that the design choices targeted by the State are not
protected “speech or publishing activities.” Id. at 22a,
38a, 54a.
3. Meta sought mandamus relief in the Nevada Supreme Court. App., infra, 2a. The state supreme court
exercised its original jurisdiction but denied the petitions on the merits. Id. at 2a-9a.
The Nevada Supreme Court denied relief under
Section 230 based on its earlier decision in TikTok.
App., infra, 7a-8a. In TikTok, the court held that Section 230 did not bar claims that “TikTok knowingly designed its social media and short-form online video
platform to addict young users” through the same design features challenged here. 578 P.3d at 644-646.
The court reasoned that the claims would not impose
10
liability for “the content of posted videos” and that Section 230 does not protect “[c]ontent-neutral design features,” even those that “interact with third-party content.” Id. at 651. In this case, the court applied TikTok
in holding that Section 230 does not apply because the
State’s claims “target the design of Meta’s platforms
rather than the content of posted videos.” App., infra,
8a (quoting 578 P.3d at 651) (brackets omitted).
The Nevada Supreme Court similarly relied on TikTok to deny Meta relief under the First Amendment.
App., infra, 8a. TikTok recognized that this Court’s
decision in Moody establishes that “curating thirdparty content and moderating that content can amount
to protected expressive activity under the First
Amendment.” 578 P.3d at 652. But the court refused
to apply Moody because this Court had not addressed
how the First Amendment applies to “design features”
that “shape an addictive user experience.” Ibid. Instead, the court held that claims “target expressive
First Amendment activity” only when they would impose liability based on “content or its curation.” Ibid.
The court thus concluded that the challenged design
features are unprotected under the First Amendment.
App., infra, 8a (citing TikTok, 578 P.3d at 652).
REASONS FOR GRANTING THE PETITION
The decision below warrants this Court’s review.
Section 230 and the First Amendment provide socialmedia services with robust, overlapping protections for
how they publish third-party content. Yet the Nevada
Supreme Court held that neither protects Meta’s “design” decisions concerning how to publish content.
Those holdings are at odds with Section 230’s plain
text, the Constitution, and this Court’s decisions.
11
The Nevada Supreme Court’s approach to Section 230 is wrong. Section 230 bars claims that “trea[t]”
an online service provider as a “publisher or speaker of
any information provided” by a third party. 47 U.S.C.
§ 230(c)(1). The statute thus protects a provider from
liability for third-party content and its publication.
The Nevada Supreme Court improperly viewed publishing as confined to deciding whether to publish particular content—excluding the many editorial decisions
publishers must make about how and to whom to publish third-party content. That atextual view is irreconcilable with the ordinary meaning of “publisher,” the
statutory context, and the then-extant consensus interpretation that Congress ratified in 2018 through subsequent legislation.
The Nevada Supreme Court’s treatment of the First
Amendment is equally flawed. This Court has long read
the First Amendment to protect a publisher’s decisions
about how to display and arrange content. This Court
recently reaffirmed, too, that basic First Amendment
principles “do not vary” when it comes to social media.
Moody, 603 U.S. at 733 (quoting Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 790 (2011)). The
state supreme court nonetheless held that the publication choices reflected in the design of Meta’s services
do not even implicate the First Amendment.
That makes no sense. Regardless of whether Section 230 protects such editorial decisions, the First
Amendment unquestionably does. Speech and press
liberties ensure that a plaintiff could never sue a newspaper for arranging its stories to maximize subscriptions or cable news for teasing stories before commercial breaks to keep viewers tuned in. The answer
should be no different for social media. Although
12
claims of harm from publishing are as old as the Republic itself, there is no history of prohibiting purportedly “addictive” presentations of content.
Immediate review is warranted. The Nevada Supreme Court’s decision deepens a conflict on the scope
of Section 230 and entrenches its earlier departure
from other courts on the scope of the First Amendment. The issues affect pending suits brought by
nearly every State and thousands of plaintiffs in courts
across the country, many of which may not make their
way to this Court cleanly. This case presents an excellent vehicle to resolve urgent and intertwined issues.
I. THE DECISION BELOW IS WRONG.
Section 230 and the First Amendment both protect
the online presentation of third-party content. The Nevada Supreme Court curtailed those dual protections
on the theory that Section 230 and the First Amendment bar only attempts to impose liability for binary
decisions about whether to publish third-party content—not any of the choices publishers make regarding how to present the content, including how much, for
how long, and to whom. In reducing Meta’s protections
to the up-or-down decision whether to publish specific
third-party content on its services, the state supreme
court defied Section 230 and the First Amendment,
both of which foreclose attempts to commandeer editorial decisions about the arrangement, organization, and
display of third-party content.
13
A. Section 230 Protects Online Service Providers’ Editorial Decisions About How To Publish Third-Party Content.
1. Section 230 states that “[n]o provider or user of
an interactive computer service shall be treated as the
publisher or speaker of any information provided by
another information content provider.” 47 U.S.C.
§ 230(c)(1). Because the statute does not define what
it means to “treat” a provider as a “publisher or
speaker,” the words bear their ordinary meaning. See
EPA v. Calumet Shreveport Refining, L.L.C., 605 U.S.
627, 638 (2025). A “publisher” is “one that makes public” or “reproduce[s] . . . a work intended for public consumption.” Webster’s Third New International Dictionary 1837 (1993) (Webster’s); see ibid. (defining
“publish” as “to declare publicly” or “make generally
known”). And to “treat,” when used with “as,” means
to “regard (as something or in a particular way) and act
toward or deal with accordingly.” Webster’s 2434. Section 230 thus bars claims that would impose liability on
a defendant for how it does (or does not) display any
information provided by third parties.
Treating a defendant as a publisher includes regulating the many decisions that publishers invariably
make about how to display content—in what format,
where, when, for how long, and to whom. As this Court
has explained in the First Amendment context, “editorial control and judgment” extend beyond the “choice
of material” to other “decisions made as to limitations
on the size and content of the [publication].” Tornillo,
418 U.S. at 258. Publishers also decide how to arrange
content. For example, they may include excerpts of a
book on its cover or place “above the fold” the stories
14
they think “will sell the newspaper.” Cambridge Business English Dictionary 2 (2011). In addition, publishers make decisions to tailor the publication to the intended audience—whether nationwide, local, or (as
with social media) individualized. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 (1984). And publishers’ “broad discretion in selecting [content]” includes the authority to discontinue offerings or change
their format. FCC v. WNCN Listeners Guild, 450 U.S.
582, 602 (1981); see id. at 600.
As further evidence that Congress used the ordinary meaning of publisher, Section 230 bars claims that
treat a provider as either “the publisher or speaker” of
third-party content. 47 U.S.C. § 230(c)(1) (emphasis
added). The term “speaker” already prevents providers from being treated as the one who “ma[d]e a written statement,” protecting them from liability for
third-party content itself. Webster’s 2185. The term
“publisher” would be redundant if it did not cover a
broader range of editorial functions that make thirdparty content available to the public. See Yellen v. Confederated Tribes of Chehalis Reservation, 594 U.S. 338,
360 (2021).
The plain meaning of Section 230 thus bars any
claim that would impose liability on online service providers for the way they publish third-party information,
including the many decisions they must make about not
only whether to display others’ content but also “where
on their sites” content should appear, “to whom it
should be shown,” and “what type and format of thirdparty content they will display.” Force v. Facebook,
Inc., 934 F.3d 53, 66-67 (2d Cir. 2019). Such claims
“treat” providers as “publishers” by trying to hold
them responsible for the “form” in which they make
15
third-party content available. Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 21-22 (1st Cir. 2016).
Instead of limiting that protection to claims that impose liability for publishing only certain kinds of information (such as defamation), Congress cast a wide net
for claims that regard the defendant as a publisher.
The statutory prohibition applies to “any information
provided by another information content provider”—
not just to specific kinds of content, harmful or otherwise. 47 U.S.C. § 230(c)(1) (emphasis added). And “[n]o
cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3). Section 230
thus ensures that state law cannot control how service
providers present any third-party content online, just
as state law cannot control whether the content appears to begin with.
The statutory context confirms that Section 230(c)(1)
insulates online service providers from liability for decisions concerning how—and not merely whether—to
publish content. See Snyder v. United States, 603 U.S.
1, 12-13 (2024). Congress expressly defined the “interactive computer service[s]” entitled to protection under subsection (c)(1) to include “access software provider[s],” 47 U.S.C. § 230(f)(2), which offer “software”
or “tools” that “filter,” “screen,” “display,” “pick,”
“choose,” “digest,” “organize,” or “reorganize” content,
id. § 230(f)(4). That breadth of coverage makes sense.
After all, if subsection (c)(1) did not protect decisions
about how to display content, then plaintiffs could
evade the statute by targeting interactive computer
services for functions that they necessarily and predictably perform. Congress did not extend Section 230
protection to such entities “with one hand, only to bar
16
it with the other.” Exxon Mobil Corp. v. Corporación
Cimex, S.A. (Cuba), 146 S. Ct. 1909, 1919 (2026) (citation omitted).
Congress dispelled any possible ambiguity through
subsequent legislation. Lower courts had (until recently) uniformly understood subsection (c)(1) to “protec[t] the ‘exercise of a publisher’s traditional editorial
functions.’” Malwarebytes, Inc. v. Enigma Software
Group USA, LLC, 141 S. Ct. 13, 16 (2020) (Thomas, J.,
statement respecting the denial of certiorari) (quoting
Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th
Cir. 1997)). Congress ratified that consensus interpretation by amending Section 230 to exempt certain sextrafficking claims, without modifying subsection (c)(1).
Allow States & Victims to Fight Online Sex Trafficking
Act of 2017, Pub. L. No. 115-164, § 4(a), 132 Stat. 1254
(2018) (47 U.S.C. § 230(e)(5)). When Congress amends
a statute but leaves untouched language construed in
an “unwavering line of . . . judicial interpretation,”
Congress is presumed “to ratify” the judicial construction of the unamended provision. Bragdon v. Abbott,
524 U.S. 624, 645 (1998).
Here, the design features targeted by the State are
integral to publication of third-party content. The
State challenges “endless scroll, autoplay, and reels,”
faulting Meta for how much content it publishes. App.,
infra, 101a-107a. The State alleges that “ephemeral”
content shown for only 24 hours draws users back to
social media on a daily basis, faulting Meta for how
long content is made available. Id. at 121a-125a. The
State alleges that Meta should not have displayed “reactions” (such as likes and comments) to young users,
faulting Meta for publishing a specific type of thirdparty content to a particular audience. Id. at 107a-
17
121a. And the State alleges that Meta should not have
sent notifications, faulting Meta for informing users
about available content. Id. at 125a-127a.
Each of those functions—how much content to publish in a given format, how long the content stays up,
and to whom to publish the content—is necessarily
part of the presentation of third-party content. Meta
must post the content for either a short period or a long
period. It must post either a lot of content or a little
bit. And it must post the content to either a small audience or a large one. There is no way to remain agnostic about these judgments and to publish thirdparty content without deciding how that content will be
presented. Section 230(c)(1) leaves those decisions
about organization and display to online publishers, not
to 50 different States, thousands of school districts, and
millions of users.
2. The Nevada Supreme Court has drastically limited Section 230’s protection against claims that
“trea[t]” a defendant “as the publisher or speaker” to
claims that “seek to curtail or alter the mix of thirdparty content” that the online service provider publishes. TikTok, 578 P.3d at 649, 651 (citation omitted).
Below, the court adhered to its now-entrenched view
that Section 230 does not bar claims that “target” a
provider’s “design” of its “platforms rather than the
content of posted videos.” App., infra, 7a-8a. That interpretation has no basis in the statute and fails on its
own terms.
The state supreme court mistakenly tried to divorce
online service providers’ design features from the content that they make available to the public. No ordinary speaker of the English language would say that a
18
State “treat[s]” a newspaper company “as [a] publisher,” 47 U.S.C. § 230(c)(1), only when it dictates
which stories to run—but not when the State tells the
company which stories to publish on the front page,
how big to make headlines, where to divide stories that
must “jump” to be continued on an internal page, how
many days to run a column, or how frequently to publish. Each is a quintessential editorial judgment,
whether made by a newspaper publisher or a socialmedia company. See pp. 13-14, supra.
Nevada’s suit seeks to impose liability on Meta for
how much content it displays, how long it leaves content up, what content (here, likes and reactions) it displays to a particular audience, and whether it publicizes the availability of content. Its overarching theory
that Meta “designed its social media platforms to addict young users,” App., infra, 2a, faults Meta for publishing engaging third-party content in an engaging
way. But that is what publishers do. The State’s suit
thus treats Meta as a publisher and is barred by Section 230.
B. The First Amendment Protects Editorial
Decisions About How To Publish Content.
The Nevada Supreme Court also erred by holding
that the First Amendment permits state law to override online platforms’ editorial judgments in presenting third-party content. This Court has long held that
the First Amendment protects editorial decisions
about how to display others’ speech. That principle applies equally to social-media services’ choices about
how to publish information supplied by others. If the
state supreme court were correct that Section 230 does
19
not apply here because the relevant publishing decisions are Meta’s, then the First Amendment clearly
prohibits Nevada from targeting Meta’s own editorial
judgments.
1. The First Amendment’s Speech and Press
Clauses protect editorial decisions about how to display content. When a person “exercises editorial discretion in the selection and presentation” of content,
that person is “engage[d] in speech activity.” Arkansas
Educational Television Comm’n v. Forbes, 523 U.S.
666, 674 (1998). This Court has “reaffirm[ed] unequivocally the protection afforded to editorial judgment” in
preparing compilations of speech, whether that judgment goes to “content or layout.” Tornillo, 418 U.S. at
255 (quoting Pittsburgh Press Co. v. Pittsburgh
Comm’n on Human Relations, 413 U.S. 376, 391
(1973)).
The Free Press Clause bolsters that conclusion by
providing overlapping protection for editorial judgments. See Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622, 636 (1994). The press has always had “editorial discretion” to choose among both “a wide variety
of topics” and “a wide variety of formats.” Ibid. (citation omitted). In Tornillo, for example, the Court explained that “decisions made as to limitations on the
size and content of [a] paper” alike “constitute the exercise of editorial control and judgment” that the Free
Press Clause safeguards. 418 U.S. at 258 (emphasis
added).
Long before Moody, the Court understood the “liberty of the press” to encompass “every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).
20
Moody further underscored that, “‘[w]hatever the challenges of applying the Constitution to ever-advancing
technology, the basic principles’ of the First Amendment ‘do not vary.’” 603 U.S. at 733 (quoting Brown,
564 U.S. at 790). Such protections “hold true” for expression “conveyed over the Internet.” 303 Creative
LLC v. Elenis, 600 U.S. 570, 587 (2023).
The First Amendment thus protects social-media
services’ editorial decisions “about what third-party
speech to display and how to display it.” Moody,
603 U.S. at 716. No less than traditional publishers
who use printing presses, social-media companies today exercise “‘editorial discretion in the selection and
presentation’ of content.” Id. at 731 (quoting Arkansas
Educational Television, 523 U.S. at 674). Online service providers “possess a First Amendment right to exercise their editorial discretion over what content to
carry and how to carry it.” U.S. Telecom Ass’n v. FCC,
855 F.3d 381, 430 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc). Yet the
State’s claims in this case seek to impose liability for
Meta’s exercise of protected editorial judgment:
The First Amendment protects Meta’s choices
about how much content to display. Endless
scroll and autoplay affect the publication’s “size,”
just like a decision by a newspaper to add another
section or by a cable broadcaster to air a TVshow marathon. Tornillo, 418 U.S. at 258.
The First Amendment protects Meta’s choices
about how long to display content. The feature
the State calls ephemeral content (“stories” that
post for only 24 hours) determines the period certain content is made available, just like a studio
21
might offer a movie for a limited run in theaters
before releasing it on Netflix. Cf. Reed v. Town
of Gilbert, 576 U.S. 155, 172 (2015) (invalidating
durational limits on signs).
The First Amendment protects Meta’s choices
about what content to display. The display of users’ likes and other reactions is “an edited compilation of speech generated by other persons,”
just like “most newspapers’ opinion pages.”
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 570 (1995).
The First Amendment protects Meta’s choices to
publicize the availability of content on its services. Notifications about new content are a form
of “circulating” the content, just like advertising
the upcoming release of a new book. Lovell,
303 U.S. at 452.
Unlike traditional tort actions that target unprotected speech or conduct with “exacting proof requirements” that “provide sufficient breathing room for protected speech,” the State seeks to impose massive fines
directly for these protected editorial judgments.
Chiles v. Salazar, 607 U.S. 627, 653 (2026) (brackets
and citation omitted). The State’s claims thus violate
the First Amendment.
2. The Nevada Supreme Court did not dispute that
the State’s claims concern Meta’s choices about how to
display content. Nor could it after circumventing Section 230 on the theory that the State targeted Meta’s
own choices instead of third-party content. But the
court still sidelined Moody for two reasons. First, that
court has understood the First Amendment to bar only
efforts “to impose liability based on any content or its
22
curation.” App., infra, 8a (quoting TikTok, 578 P.3d at
652). Second, the court has reasoned that Moody does
not apply to design features that “shape an addictive
user experience.” TikTok, 578 P.3d at 652. Neither
justification has any grounding in this Court’s decisions.
The Nevada Supreme Court was wrong that the
First Amendment does not protect design features that
implement editorial decisions about how to display content. As discussed, the First Amendment protects
“‘editorial discretion in the selection and presentation’
of content.” Moody, 603 U.S. at 731 (emphasis added;
citation omitted). That protection extends beyond the
“choice of material” to many other editorial choices
about how to display the content, such as questions of
“layout” and “size.” Tornillo, 418 U.S. at 255, 258 (citation omitted). No decision of this Court endorses the
state supreme court’s crabbed view of the First
Amendment.
The Nevada Supreme Court also erred in holding
Moody inapplicable any time a plaintiff claims that a
compilation of content is “addictive.” TikTok, 578 P.3d
at 652. Here, the State claims that the challenged design features are “addictive” because some young users “spend more time on [Meta’s services] than they
otherwise would” without the features. App., infra,
101a. But this Court has underscored “the narrowness
of the recognized exceptions” to the First Amendment’s protections, including its protections for “editorial judgment[s]” about “where to place” content in a
publication. Pittsburgh Press, 413 U.S. at 382. Socalled addictive speech is not a “historic and traditional” category excluded from the First Amendment.
23
United States v. Alvarez, 567 U.S. 709, 717 (2012) (citation omitted). To the contrary, “[t]hat the State finds
expression too persuasive does not permit it to quiet
the speech or to burden its messengers.” Sorrell v.
IMS Health Inc., 564 U.S. 552, 578 (2011).
Nor does any court have “freewheeling authority to
declare new categories of speech outside the scope of
the First Amendment.” United States v. Stevens, 559
U.S. 460, 472 (2010) (emphasis added). Instead, this
Court has required “persuasive evidence” that any exception is “part of a long (if heretofore unrecognized)
tradition of proscription,” even in cases involving minors. Brown, 564 U.S. at 792; see, e.g., id. at 794;
Erznoznik v. Jacksonville, 422 U.S. 205, 213-214
(1975). There is no tradition of punishing bookstores
for stocking their shelves with page-turner chapter
books, broadcasters for assembling an irresistible Saturday morning lineup of cartoons, or advertisers for
pairing children’s products with “catchy jingles.” Sorrell, 564 U.S. at 578.
History reflects that criticism of entertainment popular among the young is nothing new. Each new generation has disparaged “dime novels,” then “motion
pictures” and “[r]adio dramas,” and later “comic
books,” “television,” “music lyrics,” and “video games.”
Brown, 564 U.S. at 797-798. The First Amendment has
stood steadfast against such efforts to penalize new
forms of media merely because of their purportedly
“greater capacity for evil . . . among the youth of a community.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
502 (1952) (holding that the First Amendment protects
“motion pictures”). That same tradition precludes Nevada’s attempt to penalize Meta for editorial decisions
about how much content to publish, how long to leave
24
it up, what content to publish to a particular audience,
and whether to publicize when content is available.
II. THE DECISION BELOW WARRANTS REVIEW.
In denying protection under Section 230 and the
First Amendment to editorial decisions about how to
display content, the Nevada Supreme Court deepened
one acknowledged split and created another. Courts
have frequently recognized their disagreement about
whether Section 230 protects the full range of editorial
decisions online platforms make. The Nevada Supreme Court also departed from decisions that have
applied settled First Amendment principles to laws
that regulate purported social-media addiction. Uncertainty on both issues has created disarray and confusion as Meta and other online service providers face
rapidly proliferating lawsuits under the laws of dozens
of States, without the nationally uniform protections
Section 230 and the First Amendment should guarantee.
A. The Decision Below Implicates Splits About
Both Section 230 And The First Amendment.
1. The Nevada Supreme Court aligned itself with
the wrong side of an acknowledged 8-4 split among the
courts of appeals and state courts over Section 230’s
application to an online service provider’s decisions regarding how to publish content. Had the state supreme
court adopted the majority rule, it would have held that
Section 230 bars many or all of the State’s claims.
a. The First, Second, Fifth, Ninth, and D.C. Circuits, and the Texas Supreme Court, Wisconsin Supreme Court, and the New York Appellate Division,
25
have all rejected attempts to divorce design choices
from the content whose publication they facilitate.
The Second Circuit’s decision in Force is illustrative.
There, the plaintiffs sued Facebook (now Meta) for allegedly providing Hamas with a communications platform that enabled attacks on U.S. citizens. 934 F.3d at
57. The Second Circuit applied Section 230 to bar the
claims that Facebook should have “delete[d] content
from Hamas members’ Facebook pages.” Id. at 65.
But the court went further, holding that Section 230
also protects “arranging and distributing third-party
information” as an “essential result of publishing.” Id.
at 66. From “the early days of the Internet,” online
service providers have always made “editorial decisions” beyond “the decision to host third-party content
in the first place,” such as “where on their sites” content should appear, “to whom it should be shown,” and
“what type and format of third-party content they will
display.” Id. at 66-67.
The Ninth Circuit reached the same conclusion in
Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093
(9th Cir. 2019). The website there allowed users to post
anonymously and notified users when someone in their
group responded to a post. Id. at 1094-1095. The plaintiff’s son overdosed after buying drugs through the
website. Id. at 1095. Although the plaintiff framed her
claims as challenges to the website’s design features—
including anonymous posting and the notification to
her son that someone had responded to his solicitation
for drugs—the Ninth Circuit held that she could not
“plead around Section 230 immunity” by attacking design features that are “tools meant to facilitate the
communication and content of others.” Id. at 1098. By
using these features, the online service provider “was
26
acting as a publisher of others’ content.” Ibid.; accord
Doe v. Grindr Inc., 128 F.4th 1148, 1153 (9th Cir. 2025)
(design claims treat defendant as publisher when
“challenged features” are not “independent of [defendant’s] role as a facilitator and publisher of third-party
content”).
Other courts of appeals have likewise rebuffed attempts to hold online service providers liable for publishing decisions about how, or to whom, to present or
to organize third-party content. The First Circuit has
held that Section 230 protects “the structure and operation” of a website, including the ability for users to
post anonymously, decisions on who may or may not
post, and rules for uploading photographs. Backpage.com, 817 F.3d at 21. The Fifth Circuit has applied
Section 230 to bar a claim that a service provider was
liable for failing to “implemen[t] safety technologies”
to protect minors from communicating with adults.
Doe v. MySpace, Inc., 528 F.3d 413, 419-421 (5th Cir.
2008). And the D.C. Circuit agrees that, under Section 230, “[s]tate law cannot predicate liability for publishing decisions,” Klayman v. Zuckerberg, 753 F.3d
1354, 1360 (D.C. Cir. 2014), including the “choice” to
present “third-party data in a particular format,” such
as “a website design that” takes location information
provided by third parties and portrays it “pictorially,”
Marshall’s Locksmith Service Inc. v. Google, LLC,
925 F.3d 1263, 1269-1270 (D.C. Cir. 2019).
Three state courts have rejected attempts to evade
Section 230 by challenging design features. The Texas
Supreme Court has interpreted Section 230 to bar
claims that are “couched as complaints about Facebook’s ‘design and operation’ of its platforms” if those
design features would have prevented the alleged harm
27
only by eliminating or reducing content. In re Facebook, Inc., 625 S.W.3d 80, 93 (Tex. 2021) (citation omitted). The Wisconsin Supreme Court has held that a
claim that an online provider negligently “design[ed] a
website that could be used to facilitate illegal sales”
still “derives from its role as a publisher.” Daniel v.
Armslist, LLC, 926 N.W.2d 710, 725-726 (Wis. 2019).
And the New York Appellate Division has reasoned
that a claim of defective design was “‘inextricably intertwined’ with the social media defendants’ role as
publishers of third-party content.” Patterson v. Meta
Platforms, Inc., 239 N.Y.S.3d 726, 735 (App. Div. 2025)
(citation omitted).
b. By contrast, the Third and Fourth Circuits and
the Massachusetts Supreme Judicial Court have limited Section 230’s coverage to claims that hold online
service providers liable for harmful or improper thirdparty content.
The Fourth Circuit has held that Section 230 allows
liability for publishing third-party content unless liability would be “based on the information’s improper
content.” Henderson v. Source for Public Data, L.P.,
53 F.4th 110, 123 (4th Cir. 2022). The court reasoned
that historically “defamation required publishing a
‘false and defamatory statement,’” so the “publisher
was held liable because of the improper nature of the
content of the published information.” Id. at 122 (citation omitted). Based on its understanding of the common law, the court adopted a two-part test: a claim
treats a defendant as a publisher or speaker “when it
(1) makes the defendant liable for publishing certain
information to third parties, and (2) seeks to impose liability based on that information’s improper content.”
Id. at 120-121.
28
The Massachusetts Supreme Judicial Court has followed the Fourth Circuit’s narrow interpretation of
Section 230. In Commonwealth v. Meta Platforms, the
court recognized that other courts have held that “the
phrase ‘treated as the publisher . . . of any information’
extends to bar claims that implicate a provider’s role
as a publisher, including its editorial choices concerning whether, how, when, for how long, and to whom to
publish information.” 277 N.E.3d at 178; see id. at 179
(discussing Force and Backpage.com). But the court
embraced the requirement in Henderson that a claim
must both “implicate publishing activities” and “seek
to hold the service provider liable for the content of the
information published.” Id. at 185. Applying that rule
to claims indistinguishable from the State’s claims
here, the Massachusetts Supreme Judicial Court held
that Section 230 allowed a State to impose liability for
editorial decisions about “how, whether, and for how
long information is published,” so long as the State asserts that “the published information itself is not the
source of the harm alleged.” Id. at 187.
The Third Circuit has likewise held that Section 230
does not protect editorial choices about how to display
content, albeit with a different rationale. In Anderson
v. TikTok, Inc., 116 F.4th 180 (3d Cir. 2024), the court
concluded that Section 230 does not protect decisions
about how to “curate compilations of others’ content”
because such editorial decisions constitute the provider’s own “protected first-party speech” under this
Court’s decision in Moody. Id. at 184. The court
stated, echoing the Fourth Circuit and Massachusetts
Supreme Judicial Court, that Section 230 applies only
when service providers “are sued for someone else’s
expressive activity or content.” Id. at 183. At the same
29
time, the Third Circuit acknowledged that its decision
“may depart from” the majority view reflected in decisions like Force, Dyroff, Backpage.com, MySpace, and
Klayman. Id. at 184 n.13.
c. The Nevada Supreme Court below reiterated its
commitment to the minority view that Section 230 does
not bar claims challenging design features so long as
the State disavows any effort “to hold Meta liable for
any third-party content it publishes.” App., infra, 7a;
accord TikTok, 578 P.3d at 651. That reasoning firmly
aligns with the Fourth Circuit side of the split.
Meta would have prevailed under the majority view
of Section 230 for many or all of the State’s claims. The
features determining how much or how long Meta displays content (such as endless scroll and 24-hour stories) are classic editorial decisions about “where” content should appear, “to whom it should be shown,” and
“what type and format” it should come in. Force,
934 F.3d at 66-67. The allegations that Meta failed to
“implement basic safety measures to protect minors”
(such as hiding the number of likes on posts) are
“merely another way of claiming that [Meta] was liable
for publishing” third-party content. MySpace, 528 F.3d
at 419-420. And Meta’s notifications about the availability of content are “tools meant to facilitate the communication and content of others” that Section 230
shields. Dyroff, 934 F.3d at 1098. None of those other
courts would have been swayed by the State’s attempt
to plead around Section 230.
2. In distinguishing Moody and sidelining the Constitution, the Nevada Supreme Court also created a
split on the First Amendment. The Ninth Circuit and
the New York Appellate Division have applied traditional First Amendment principles when presented
30
with a theory of social-media addiction. The decision
below did not.
The Ninth Circuit rejected social-media exceptionalism in NetChoice, LLC v. Bonta, 152 F.4th 1002 (9th
Cir. 2025), which addressed California’s Protecting Our
Kids from Social Media Addiction Act. Id. at 1009-1010.
Among other things, California sought to impose a default rule under which social-media companies “may
not show minors how many likes, shares, or other
forms of feedback a post has received” unless a parent
agrees to change the default. Id. at 1010. The Ninth
Circuit held that the regulation of the display of likes
and other reactions to minors was “content discrimination” that failed strict scrutiny. Id. at 1016-1017 (citing
Brown, 564 U.S. at 803).
In Patterson, the New York Appellate Division applied Moody to allegations of addictive design features.
The plaintiffs there alleged that violent content on social media inspired a shooter because “addictive features,” including endless scroll, autoplay, and notifications, “creat[ed] a constant stream of media that is difficult to close or leave.” 239 N.Y.S.3d at 737 (Nowak, J.,
dissenting). But the majority explained that “[e]very
method of displaying content involves editorial judgments regarding which content to display and where on
the platforms,” id. at 733, and rejected the argument
that “‘addiction’ to social media platforms” could be
“wholly unrelated” to the content, id. at 735. As a result, the case fell under Moody, even though the plaintiffs challenged features that allegedly “maximiz[ed]
[the shooter’s] engagement” with social media. Id. at
733.
The Nevada Supreme Court alone has refused to apply Moody based on allegations that editorial decisions
31
“shape[d] an addictive user experience.” TikTok,
578 P.3d at 652. That aberrant rule is at odds with
Bonta and Patterson. Under Bonta, the State’s attempt to regulate Meta’s display of likes and other reactions, App., infra, 109a-121a, is unconstitutional content-based discrimination, 152 F.4th at 1016-1017. And
under Patterson, the State’s allegations of increased
“expos[ure] to inappropriate” or “harmful” content,
App., infra, 106a, 112a, trigger the First Amendment,
particularly in light of the inextricable relationship between the allegedly addictive features and the content
they present, 239 N.Y.S.3d at 735. No other court
treats allegations of an addictive medium as a license
to abandon normal First Amendment principles.
*
*
*
In holding that neither Section 230 nor the First
Amendment protects editorial decisions about how to
display third-party content, the Nevada Supreme
Court is an outlier. Some appellate courts have correctly recognized that Section 230 and the First
Amendment create “overlap[ping]” protections for
“editorial discretion.” Computer & Communications
Industry Ass’n v. Paxton, — F.4th —, 2026 WL
2130729, at *14 (5th Cir. July 24, 2026). Another court
has treated those protections as mutually exclusive and
grounded protection for expressive editorial decisions
in the First Amendment rather than Section 230. Anderson, 116 F.4th at 184. But the Nevada Supreme
Court concluded that neither Section 230 nor the First
Amendment has anything to say about Nevada’s effort
to make its own editorial judgments for social-media
services: how much content can appear at once, how
32
long content must appear, whether likes or other reactions can be displayed, and whether users can be told
when new content is available. That misguided approach warrants this Court’s review.
B. The Questions Presented Are Exceptionally
Important.
This case presents questions of great legal and practical importance. For hundreds of millions of Americans, social media is now an integral part of daily life.
But a plethora of States, local governments, school districts, and individual plaintiffs have taken aim at those
online forums—and with them, our longstanding national commitment to freedom of expression—through
thousands of lawsuits seeking to impose liability for
social-media services’ presentation of third-party content. The decision below tears down constitutional and
statutory safeguards for online publication and undermines protections that the Framers and Congress embraced.
The adverse impact of that error and of the uncertainty from the lower-court conflicts is hard to overstate. As the Court has observed, social-media services
are “inescapable,” “structur[ing] how we relate to family and friends, as well as to businesses, civic organizations, and governments.” Moody, 603 U.S. at 716.
They “create unparalleled opportunities” to “make our
lives better.” Ibid. Yet online providers—from Meta
to Google, ByteDance, Snap, and Discord, all of which
have been sued—can operate only by “cull[ing] and organiz[ing]” the “staggering amount of content” that users create every day. Id. at 719. The decisions they
must make about “what third-party speech to display
33
and how to display it” are critical editorial choices that
define their respective services. Id. at 716.
This Court need not and should not let lower courts
remain fractured on these fundamental questions.
Congress created a nationally uniform rule by displacing “State [and] local law.” 47 U.S.C. § 230(e)(3). And
“[u]nder a National Constitution, fundamental First
Amendment limitations on the powers of the States do
not vary from community to community.” Miller v. California, 413 U.S. 15, 30 (1973). But the reasoning of the
decision below allows a host of public and private plaintiffs to wield state law to commandeer editorial decisions concerning how to organize and display content
on all manner of online services. Permitting States to
apply their own laws to impose potentially inconsistent
duties on Meta regarding its traditional editorial functions will replace the uniform “policy of the United
States,” 47 U.S.C. § 230(b), with an untenable patchwork of conflicting obligations. Ultimately, it could allow individual States to reshape online platforms
through state tort law and work a seismic change in the
way this Nation communicates.
This Court’s intervention is needed now. Backed by
private plaintiffs and local governments, many States
have launched a coordinated assault under their own
tort laws against Congress’s and the Framers’ considered decisions to protect editorial decisions. See p. 8,
supra. And litigants also are already holding up the
Nevada Supreme Court’s recent decisions as a model
for other courts to follow. E.g., Appellant’s Reply Br.
at 43-44, Vancouver School District No. 37 v. Meta
Platforms, Inc., No. B340662 (Cal. Ct. App. Feb. 11,
2026), 2026 WL 509473. Without clear guidance from
34
this Court, lower courts will continue to reach inconsistent decisions imposing incompatible obligations on
Meta regarding its editorial decisions on how to display
third-party content on its services.
III. THIS CASE IS AN EXCELLENT VEHICLE.
This case is an excellent vehicle for the Court to address both questions presented. The Nevada Supreme
Court fully decided both questions presented as pure
questions of law. Either question will be outcome determinative on the State’s design-defect and related
claims and will substantially alter the analysis on the
remaining claims. A better vehicle for addressing
these questions is unlikely to arise soon.
The petition offers a clean shot for this Court to resolve the questions presented. In contrast to a facial
preenforcement challenge that would require this
Court to hypothesize how Nevada law might be applied
in a spectrum of other cases, this petition raises “asapplied challenge[s]” that allow this Court to focus on
the specific editorial decisions that the State targets.
Moody, 603 U.S. at 747 (Barrett, J., concurring). The
state supreme court squarely rejected both as-applied
defenses. It held first that Section 230 does not apply
because the State’s claims “explicitly target the design
of [Meta]’s platforms rather than the content of” any
third-party material that Meta publishes. App., infra,
8a (citation omitted; alteration in original). It then held
that the State’s claims do not implicate the First
Amendment because the State seeks to impose liability
on Meta for how it publishes third-party content
through allegedly “addict[ive]” design features. Id. at
2a, 8a (citation omitted). No factual disputes would impede this Court’s review of those purely legal rulings.
35
The state supreme court’s resolution of Section 230
and the First Amendment together makes this case an
ideal vehicle. The two questions are inextricably interrelated. To the extent Nevada seeks to hold Meta liable as the publisher of third-party speech, Section 230
bars its claims. And to the extent Nevada can avoid
Section 230 by contending that it attacks Meta’s own
editorial choices, the First Amendment bars its claims.
This Court should not consider one half of that equation without addressing the other. Plaintiffs have pingponged between the two theories, characterizing editorial decisions as a platform’s own choices that fall outside of Section 230, e.g., No. 89922 Resp. Ans. to Writ
Pet. 49-50, then flipping around and minimizing those
choices as functional design exercises rather than First
Amendment expression, e.g., id. at 60. Having both
theories before the Court is critical to resolving the
overriding question whether state law can shape social
media’s publishing decisions.
Both questions presented also are dispositive of the
claims at issue. If this Court were to hold that Section 230 or the First Amendment protects the challenged design features, that decision would at least bar
Nevada’s claims that are premised on Meta’s publication decisions and would likely have significant repercussions for any remaining claims.
No further percolation is needed. Both sides of the
Section 230 issue have been fully ventilated in decisions
that acknowledge an open and entrenched conflict on
the question presented. See, e.g., Commonwealth v.
Meta Platforms, 277 N.E.3d at 180-183. And the state
supreme court’s reaffirmance of its TikTok decision
here confirms that the court will not correct course
without this Court’s intervention. Given the inherently
36
nationwide operation of social-media services, it is untenable to leave Nevada an anti-free-expression enclave.
No superior vehicle is likely in the offing. Despite
the large number of suits against social-media services,
the vast majority continue to wend slowly through federal and state trial courts, where they may become
complicated by factual nuances. Those proceedings
will likely take years to reach this Court, if they ever
do at all. Meanwhile, erroneous decisions like the one
below will warp the protections of Section 230 and the
First Amendment. And a decision from this Court clarifying that both provisions bar many of the claims those
suits assert would avoid the waste of enormous efforts
by courts and parties alike.
37
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
MARK W. MOSIER
KENDALL T. BURCHARD
COVINGTON &
BURLING LLP
850 Tenth Street, NW
Washington, DC 20001
KRISTIN A. L INSLEY
GIBSON, DUNN
& CRUTCHER LLP
One Embarcadero Center
Suite 2600
San Francisco, CA 94111
JEFFREY B. WALL
Counsel of Record
JONATHAN C. BOND
MORGAN L. RATNER
JESSICA L. WAGNER
JEFF LIU
GIBSON, DUNN & CRUTCHER LLP
1700 M Street NW
Washington, DC 20036
(202) 955-8500
jwall@gibsondunn.com
PATRICK J. FUSTER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Counsel for Meta Platforms, Inc. and Instagram, LLC
AUGUST 7, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.