The Twenty-Six Words and Their Limits: Section 230, Platform Immunity, and What It Never Covered
By Casey Scott McKay ·
Section 230 is twenty-six words of statutory text that decide whether a platform case ends at the pleadings or costs seven figures, and almost every published loss traces to a plaintiff who found a theory that never touched third-party content. This article walks the three elements courts actually apply, then works the four places the immunity stops - promises the platform made itself, content it materially contributed to, duties that exist independent of publishing, and the statutory carve-outs. It explains why the intellectual property carve-out at subsection (e)(2) splits the circuits and why that split changes where a trademark plaintiff files. It covers the design-defect turn in Lemmon and Internet Brands, the recommendation cases from Force through Anderson, and why subsection (c)(2) is the weaker shield practitioners reach for first. It closes with the procedural posture that makes or breaks the defense and the moderation records that should exist before any complaint arrives.
IP and Technology > Internet | Article | Published 22 November 2025 - Updated 16 February 2026 | Casey Scott McKay - marksy.us
Summary. Section 230 is twenty-six words of statutory text that decide whether a platform case ends at the pleadings or costs seven figures, and almost every published loss traces to a plaintiff who found a theory that never touched third-party content. This article walks the three elements courts actually apply, then works the four places the immunity stops — promises the platform made itself, content it materially contributed to, duties that exist independent of publishing, and the statutory carve-outs. It explains why the intellectual property carve-out at subsection (e)(2) splits the circuits and why that split changes where a trademark plaintiff files. It covers the design-defect turn in Lemmon and Internet Brands, the recommendation cases from Force through Anderson, and why subsection (c)(2) is the weaker shield practitioners reach for first. It closes with the procedural posture that makes or breaks the defense and the moderation records that should exist before any complaint arrives.
Keywords: section 230 · interactive computer service · information content provider · publisher or speaker · material contribution · Roommates · Zeran · Barnes v Yahoo · product design claims · algorithmic recommendation · FOSTA carve-out · intellectual property carve-out · good faith moderation · motion to dismiss · state law preemption · DMCA safe harbor · platform liability · content moderation records · contract claims · promissory estoppel
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