A federal appeals court just made it harder for online services, big and small, to get lawsuits over user speech dismissed early. In California v. Meta, a Ninth Circuit three-judge panel held that the lower court’s denial of Section 230 immunity to Meta is not immediately appealable. The misguided ruling has the potential to have widespread impact and to threaten the free speech of all internet users. The ruling is bigger than a loss for Meta, which has the resources to defend itself against these lawsuits. The court’s ruling signals that all online services (and internet users) that host others’ speech—including those without Meta’s deep pockets—must bear the burden and expense of fighting lawsuits that Section 230 ultimately precludes. This will have real consequences, incentivizing online services to take down users’ speech in response to spurious legal threats, filter speech preemptively, or simply stop offering a place for people to speak online. So even though some may think that Meta is not a sympathetic company, the ruling should raise concerns for anyone who cares about an open and free internet. Immunities from Suit Advance Important Public Interests A little procedural background is necessary to understand the implications of the Ninth Circuit’s ruling. Meta had moved to dismiss a group of social media addiction cases brought by state attorneys general, school districts, and local governments. Meta argued that Section 230(c)(1) immunity applies because the plaintiffs’ claims, framed as seeking to hold Meta liable for allegedly harmful platform features, really seek to hold the company liable for publishing decisions related to third-party content. Section 230 is one of the most important laws supporting online free speech, because its protections for online services enable them to distribute users’ speech at an unprecedented scale. The district court ruled that Section 230 does not apply to certain features (and does apply to others) and so denied the motion to dismiss on the claims related to those features. Meta immediately appealed invoking appellate jurisdiction under 28 U.S.C. § 1291, but the question before the Ninth Circuit was whether the appeal was legally appropriate. Under Section 1291, U.S. circuit courts generally only have jurisdiction to hear appeals of “final decisions” from the district courts. Final decisions are trial court orders ending a case, or come after a trial on the merits. Section 230 appellate cases often arise from a district court’s grant of a defendant platform’s motion to dismiss the plaintiff’s case based on Section 230. Typically, a district court’s denial of a defendant’s motion to dismiss is not a final order—it simply means that the case may continue to discovery and summary judgment or trial, after which time an appeal would be appropriate. However, federal law allows for “interlocutory appeals,” which are appeals of orders that do not end a case but nonetheless are allowed because they involve important legal issues. For example, there is an exception to Section 1291 called the “collateral order doctrine”—at issue in this case—allowing for immediate appeal if, as the Ninth Circuit explained here, “holding a trial would imperil a substantial public interest.” Inherent in the collateral order doctrine is the consideration of whether an immunity like Section 230 provides mere “immunity from liability” or a more robust “immunity from suit.” An immunity from liability does not require an immediate appeal and so demands that Section 1291’s final order rule be followed. That’s because waiting until the end of a case before an appellate court can consider the trial court’s denial of immunity does not prejudice the defendant. The appellate court may overturn the trial court and grant the immunity, and thus the defendant’s right to be immune from liability would be vindicated on appeal. Immunity from suit is different. It means that the public interest demands that a defendant be able to get out of a case as early as possible and avoid having to litigate the case to the end. The U.S. Supreme Court has held, for example, that qualified immunity is such an immunity, and that a district court’s denial of qualified immunity for a government official is immediately appealable under Section 1291, notwithstanding the lack of a final order. The idea is that the public interest is served when government officials are free to act without fear of consequences when established rights are not implicated, and so determining as soon as possible whether their acts are immune serves that public interest. Here, the Ninth Circuit held that the district court’s denial of Section 230 immunity for Meta was not immediately appealable under Section 1291’s collateral order doctrine because the immunity is not from suit, but rather from ultimate liability. The panel’s absurd result contravenes the text of Section 230, the statute’s policy goals, and the court’s own prior rulings. Treating Section 230 as an Immunity from Suit Protects Online Free Speech Meta rightly argued that Section 230(e)(3) plainly states, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The panel dismissed this argument, stating that this language likely amounts to “redundancy” reflecting only immunity from liability. The court failed to side with the more reasonable position that statutory language should generally not be interpreted as superfluous. Meta also reminded the panel that the Ninth Circuit has many times over the past two decades framed Section 230 as both an immunity from liability and an immunity from suit. The panel also dismissed this argument, stating, “It is true that we have used the phrase ‘immunity’ somewhat loosely in our section 230 jurisprudence.” But “loosely” is a gross mischaracterization—the panel did not discuss a seminal prior ruling, Fair Housing Council of San Fernando Valley v. Roommates.com (2008), in which the entire Ninth Circuit, not just a three-judge panel, explicitly ruled that Section 230 is also an immunity from suit. That court rightly explained that Section 230 “must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.” Why is it important that social media platforms and other internet intermediaries (and their users) have immunity from suit for engaging in publishing activities related to third-party content—and thus a right to immediately appeal when Section 230 immunity is denied? The Ninth Circuit panel here, using their own words, failed to “evaluate the interests that would be lost through rigorous application of a final judgment requirement” and failed to consider the “substantial public interest” served by treating Section 230 as an immunity from suit. Section 230 immunity, contrary to what some argue, is not a gift to Big Tech—it applies to all internet intermediaries, big and small, from the large social media companies to smaller entities like community message boards and local ISPs. It even protects internet users who forward others’ emails or host comments on their blogs. In turn, the law supports the free speech of all internet users. While it is helpful when an internet intermediary can ultimately benefit from Section 230 immunity, if a trial court’s early denial is not immediately appealable, that means the intermediary must bear the extended logistical and financial burdens of defending itself. Under the Ninth Circuit’s logic, anyone hosting others’ speech online would have to endure the pain and expense of discovery, summary judgment, or trial, before they ultimately can be protected by Section 230. Congress crafted Section 230 to give internet intermediaries legal breathing room, so that they will be incentivized to facilitate online communication and commerce, allowing the rest of us to go online with minimal barriers to entry, without needing to have loads of money or to know how to code. Congress acknowledged in Section 230 itself, “Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.” Yet if platforms, especially smaller platforms, know that they will have to defend themselves for years in court before they can ultimately benefit from Section 230 immunity, this alone will create a perverse incentive, as we have explained, to censor user speech, in order to reduce the platforms’ legal exposure. And this incentive is only exacerbated at scale, where the sheer volume of user-generated content hosted by modern platforms makes legal risk astronomical. Unfortunately, this opinion seems to be part of larger trend reflecting the Ninth Circuit’s increasing disdain for Section 230, and apparently for free speech rights more broadly. The court similarly held last year in Gopher Media v. Melone (2025)—overruling itself—that a trial court’s denial of a defendant’s anti-SLAPP motion also is not immediately appealable under the collateral order doctrine. This is despite the fact that, similar to Section 230, California’s anti-SLAPP law is intended to allow defendants to get harassing lawsuits meant to silence them dismissed early, lest they be chilled from engaging in lawful speech on public issues due to the risk of being mired in litigation, even if they ultimately win a delayed appeal.

Flock Safety, the embattled vendor of mass surveillance technology, has rolled out a handful of new reforms intended to appease the justified nationwide anger that has seen scores of towns cancel or suspend their contracts with the company for automated license plate readers (ALPRs). The reforms are a combination of long overdue changes along with some cosmetic fixes that fail to address the fundamental dangers of this technology.   We should not be letting companies decide how much privacy we deserve. So, what do these reforms actually do?   The most consequential is Flock’s default setting of an optional 7-day retention period for ALPR data, down from its original default optional 30-day retention period. This means if police want to retain data beyond the duration of their retention setting, they need to access “Evidence Mode,” i.e., when the desired data is associated with an active investigation and not just a fishing expedition. This is significant because, in at least some circumstances, Flock has previously charged its customers to extend their retention period. So, while towns can likely easily flip the switch to longer retention periods, it might come with a price tag some cities will be unwilling to pay.   Flock also has two other, likely easier-to-bypass reforms. The first is offense filtering so that cities can enable other departments to access their ALPR data only if they are investigating certain crimes, e.g., murder or robbery but not immigration-related investigations. The second is supposedly beefing up their audit feature and proactively locking out officers who file suspicious requests for data. The major problem here is the fact that Flock’s enhanced audit and transparency tools help to address a problem that Flock itself has created—an abusable mass surveillance system that tracks all cars all the time.   In addition to these reforms, there is also a tone shift coming from Flock’s CEO, Garrett Langley. Within a few weeks, Langley went from calling the DeFlock movement “terrorists” (which he has since apologized for) and saying that the wave of anti-surveillance anger was more about the current federal administration than it was specifically about his company, to a more conciliatory tone that acknowledges some of the problems of dangerous surveillance, mission creep, and police abuse.  Just look at this report from the BBC:   “Historically, my point of view as a chief executive of a private company was, I don't know if I should be making these decisions. I don't know if it's my job to say how long data should be retained,” Langley said.  He added that he has come to agree with groups like the American Civil Liberties Union and the Electronic Frontier Foundation that police should need an active case number to search Flock's data.  “They're right. I think it should be required.”  To be clear, our position has long been that police, at a minimum, need to get a warrant, signed by a judge, in order to search for historic ALPR data regarding specific vehicles. For us, it’s common sense: if police want to dip into historic ALPR data like they were going back in time to retroactively follow your comings and goings, they need a warrant.   Fundamentally, these reforms leave us wondering: what is stopping Flock from reversing course on them if their law enforcement customers respond by defecting to another ALPR vendor? Nothing.   This all leads to the bigger and more important issue: We should not be letting companies decide how much privacy we deserve. If our privacy is determined by how much surveillance technology vendors decide is too much surveillance, then we’re really out of luck. It shouldn’t be up Flock or any other ALPR vendor to decide how long police can collect and retain data on millions, if not hundreds of millions, of innocent people. We need lawmakers to step up and pass laws that restrict police’s use of surveillance technology. After all, the surveillance business model is the problem, and a few company-imposed slapdash reforms aren’t going to change that. Related Cases: SIREN and CAIR-CA v. San Jose

We’ve had a few questions from EFF supporters lately, asking whether the images we use on our blog posts, or on donation and shop items, have been created with AI image generators. We’d like to answer these questions and clarify our internal policy regarding image creation.  EFF images are all made by human beings, not by automated image generators, with very rare exceptions. This is an internal decision made by our small design team, for the following reasons:    Our designers bring knowledge and expertise to the images we create, informed by years of consultation with EFF’s lawyers, technologists and activists. We find that this informed perspective helps make the issues we cover more clear, and more engaging, for our supporters.  The content on our sites is written by human beings, not by bots, and we feel that the images illustrating these posts should be human-made as well. Our supporters come to EFF for honest, trustworthy information from expert human beings, and we want our images to communicate that authenticity as well.  Aesthetic preference: our designers prefer the look, as well as the process, of images made “by hand.” It also gives us more control over the images, including producing multiple versions for different posts. While it can sometimes take a bit longer, we feel the results are more satisfactory and long-lasting.   While it is rare, it is possible for image generators to create images that are under copyright, or understood by some to be under copyright. This could conflict with our use of a Creative Commons Attribution license for all our images. By generating our own images, we avoid any risk of a dispute about copyright infringement, so that we can continue our work promoting digital rights (including the right to fair use of copyrighted materials) without fear of a lawsuit.  An example of EFF artwork process: sketch and final art To be as clear as possible, we are now adding a small credit in the lower righthand area of each banner image that will read “Image created by EFF.” As mentioned earlier, there may be rare exceptions, when an EFF designer uses an automatically generated image as a small element in a larger illustration. In these cases, we will indicate that use with additional text, specifying the elements involved, and naming the image generator used.   We hope that by describing our internal design thinking, we are answering the questions we are getting without confusing anyone about EFF's various and nuanced positions on the issues raised by image generators. As with past technological developments, we continue to defend the rights of technologists to develop these powerful tools, as well as the right of the public to make legal and legitimate use of them. Ultimately, EFF's design team has made a choice we feel is consistent with EFF's brand and look, and it's a decision we think every user gets to make for themselves.  And don't forget: because all of our images are CC-By, you are free to use, share or remix our any image we create (we ask that you include a credit to EFF). If you need hi-res versions, you can find some on our Flickr page, or you can email us directly with any requests. And you can enjoy some of the art we create on gifts you receive when you donate to EFF! Donate to EFF Get awesome human-generated art as a thank you gift!

Imagine if McDonald’s could use trademark law to control how you use the term “fast food.” Or if the Canadian government could stop you from using the word “Canada” in the title of a book about the country and its people. That wouldn’t just be absurd; it would be an unacceptable obstacle to criticism of and commentary about those institutions. Yet the Church of Jesus Christ of Latter-day Saints (the “LDS Church”) has a track record of claiming exactly that kind of authority over the word “Mormon,” using the threat of expensive litigation to pressure speakers into compliance. We at EFF have opposed the LDS Church’s abuse of trademark law for over a decade. In 2014, we filed an amicus brief when the church sued an online dating service for church members called Mormon Match. In 2016, it threatened legal action against our client the Mormon Mental Health Association, a nonprofit association for mental health professionals who work with members of Mormon faiths. In 2025, the church tried to pressure our client Burke Sorenson into changing the name of his Mormon News Roundup podcast. Now, the LDS Church has brought a lawsuit over a podcast called Mormon Stories that examines Mormonism and Mormon culture. With the help of attorneys at Ballard Spahr, EFF has filed an amicus brief in the case. Our brief urges the district court to dismiss the case as soon as possible. Trademark is supposed to be about helping consumers identify the sources of the products they buy, not controlling criticism. That’s why our brief asks the court to use a test that’s more protective of speech than what’s applied in most trademark cases. This test, known as the Rogers test, has been adopted by many courts (but not yet this one) for cases where someone is using a trademark as part of an expressive work, rather than just as a brand name. We explain to the court that the Rogers test is an important First Amendment safeguard in part because it makes it easier to throw out meritless trademark claims before the most expensive parts of litigation, allowing more speakers to confidently stand up for their rights. Our brief goes on to explain that First Amendment safeguards are especially important in cases like this one, where a plaintiff is seeking to control the use of a common term for its common meaning. Trademark law isn’t even supposed to extend to generic terms, and for good reason. Otherwise, we risk giving trademark owners power to control discussion and debate over entire topics. It’s about time that a court shut down the LDS Church’s trademark bullying. We hope the court will do so here, while also taking the opportunity to endorse the Rogers test.

Access to accurate information about reproductive and maternal health can be critical. But on Meta's platforms, simply talking about prescription medication, abortion care, or one's own medical experiences can be enough to trigger content removals and account restrictions. That's why EFF recently submitted a public comment to the Meta Oversight Board in its consideration of a case involving an Instagram post about prescription drugs during pregnancy and childbirth. The case touches upon a topic we’ve been documenting for some time; last year we collected stories from individuals who had experienced censorship of reproductive health information on various platforms. Meta in particular stood out: Its moderation systems routinely fail to distinguish between prohibited drug transactions and legitimate discussion of medications, including educational information and people's firsthand experiences with healthcare. Through our Stop Censoring Abortion project, EFF collected nearly 100 submissions from healthcare providers, clinics, educators, advocates, researchers, and others whose reproductive health content had been removed or suppressed by social media platforms. What we found was alarming: systemic over-enforcement, confusing policies, arbitrary takedowns, sudden account bans, de-ranking, and appeals that too often went nowhere. Talking About Medication Isn't the Same as Selling It In almost every case we reviewed, the censored posts and accounts did not actually violate the platforms' stated rules. Meta frequently cited its Restricted Goods and Services policy, which prohibits attempts to buy, sell, trade, donate, gift, or request pharmaceutical drugs. But the content EFF documented overwhelmingly consisted of factual or educational information—not attempts to sell or distribute drugs. The consequences were significant. For example, the Miscarriage+Abortion Hotline had its Instagram account restricted and posts removed even though it was providing information about legally obtaining medication rather than offering pharmaceuticals for sale. Red River Women's Clinic and the RISE reproductive health research center at Emory University had accounts locked after posting about mifepristone. Other users reported having their content quietly de-ranked or “shadowbanned,” limiting its reach without giving them meaningful notice or recourse. We believe educational content and people's experiences involving reproductive healthcare and medication should not be suppressed in this way. And when Meta gets these decisions wrong, the appeals process too often fails to fix them. In several cases EFF documented, accounts were restored only after journalists drew attention to the problem or someone with a personal connection inside Meta intervened. A moderation system shouldn't require knowing the right person to get an erroneous decision reversed. Meta Can—and Must—Do Better Our submission calls on Meta to make five changes—the same five changes we asked for last year. First, Meta should publish clear, understandable policies so users can know what content is permitted and what might result in removal, downranking, or account suspension. Second, those rules must be enforced consistently and fairly. Third, Meta must provide meaningful explanations for enforcement decisions, including what rule was violated and how users can appeal. Fourth, users need a functional appeals system that doesn't depend on insider access. Finally, Meta should expand human review. Reproductive healthcare is precisely the sort of nuanced and context-dependent subject that automated moderation systems struggle to understand. As our research shows, automated systems can mistake education for drug sales, misinterpret terminology, overlook cultural and political context, and even classify legitimate advocacy as dangerous content. Human moderators should therefore play a greater role when automated systems flag sensitive healthcare information or political expression. Meta has chosen to allow discussion of reproductive healthcare, including abortion, on its platforms. That commitment means little if its moderation systems nevertheless prevent people from accessing or sharing that information. At a moment when reproductive rights are under attack around the world, the stakes are particularly high. Restricting access to essential healthcare information can have profound consequences, especially for people who already face barriers to reproductive care. Users deserve a system in which rules aren't applied arbitrarily, appeals actually work, and vital health information isn't silenced because an automated system failed to understand its context. Meta can—and must—do better. You can read our comment in full below.