Assessing and Defending a Section 230 Position: A Practitioner's Guide to the Three Elements, the Carve-Outs, and Early Dismissal
By Casey Scott McKay ·
This guide is the working sequence for evaluating and defending a Section 230 position from the day a complaint arrives to the order on the motion. It starts with the count-by-count chart that should exist before any research is done, then works each of the three statutory elements against the pleaded duties rather than the pleaded facts. It covers the evidentiary problem that decides most of these motions - how to get terms, policies, and the posts themselves before the court without converting the motion - and the discovery-stay practice that preserves the statute's economic value. It handles the carve-outs, the circuit split on state intellectual property claims, and the counts that should be conceded rather than fought. It ends with post-ruling options, settlement posture, and the remediation program that follows either outcome.
IP and Technology > Internet | Guide | Published 20 April 2026 - Updated 11 July 2026 | Casey Scott McKay - marksy.us
Summary. This guide is the working sequence for evaluating and defending a Section 230 position from the day a complaint arrives to the order on the motion. It starts with the count-by-count chart that should exist before any research is done, then works each of the three statutory elements against the pleaded duties rather than the pleaded facts. It covers the evidentiary problem that decides most of these motions — how to get terms, policies, and the posts themselves before the court without converting the motion — and the discovery-stay practice that preserves the statute's economic value. It handles the carve-outs, the circuit split on state intellectual property claims, and the counts that should be conceded rather than fought. It ends with post-ruling options, settlement posture, and the remediation program that follows either outcome.
Keywords: section 230 defense · count by count chart · motion to dismiss · judicial notice · incorporation by reference · material contribution · independent duty · promissory estoppel · product design claim · FOSTA carve-out · intellectual property carve-out · state law preemption · interlocutory appeal · discovery stay · moderation records · terms of service evidence · support macros · declaration practice · removal and remand · settlement posture
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