M.P. v. Meta Platforms Inc.

127 F.4th 516

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 4, 2025
• Docket: 23-1880
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1880

M.P., a minor, by and through, Jennifer Pinckney, as Parent, Natural Guardian, and Next Friend,

Plaintiff - Appellant,

v.

META PLATFORMS INC., f/k/a Facebook, Inc.; FACEBOOK PAYMENTS INC.; FACEBOOK TECHNOLOGIES LLC; INSTAGRAM, LLC; SICULUS INC.; FACEBOOK HOLDINGS LLC; INTERNET RESEARCH AGENCY LLC, a/k/a Mediasintez llc, a/k/a Glavset LLC, a/k/a Mixinfo LLC, a/k/a Azimut LLC, a/k/a Novinfo LLC; CONCORD MANAGEMENT AND CONSULTING LLC; CONCORD CATERING; YEVGENIY VIKTOROVICH PRIGOZHIN,

Defendant - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:22-cv-03830-RMG)

Argued: September 26, 2024 Decided: February 4, 2025

Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and KEENAN, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Keenan wrote the opinion, in which Chief Judge Diaz joined. Judge Rushing wrote an opinion concurring in the judgment in part and dissenting in part. USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 2 of 30

ARGUED: Marc Joseph Mandich, Francois Michael Blaudeau, SOUTHERN INSTITUTE FOR MEDICAL & LEGAL AFFAIRS LLC, Birmingham, Alabama for Appellant. Jacob Thomas Spencer, GIBSON, DUNN & CRUTCHER LLP., Washington, D.C., for Appellee. ON BRIEF: Evan T. Rosemore, SOUTHERN MED LAW, Homewood, Alabama for Appellants. Helgi C. Walker, Jessica L. Wagner, GIBSON, DUNN & CRUTCHER LLP., Washington, D.C., For Appellee.

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BARBARA MILANO KEENAN, Senior Circuit Judge:

In 1996, Congress enacted 47 U.S.C. § 230, commonly known as Section 230 of the

Communications Decency Act. In Section 230, Congress provided interactive computer

services broad immunity from lawsuits seeking to hold those companies liable for

publishing information provided by third parties. Plaintiff-Appellant M.P. challenges the

breadth of this immunity provision, asserting claims of strict products liability, negligence,

and negligent infliction of emotional distress under South Carolina law. In these claims,

she seeks to hold Facebook, an interactive computer service, liable for damages allegedly

caused by a defective product, namely, Facebook’s algorithm that recommends third-party

content to users. M.P. contends that Facebook explicitly designed its algorithm to

recommend harmful content, a design choice that she alleges led to radicalization and

offline violence committed against her father. 1

The main issue before us is whether M.P.’s state law tort claims are barred by

Section 230. The district court below answered this question “yes.” We agree. M.P.’s state

law tort claims suffer from a fatal flaw; those claims attack the manner in which Facebook’s

algorithm sorts, arranges, and distributes third-party content. And so the claims are barred

by Section 230 because they seek to hold Facebook liable as a publisher of that third-party

content. Accordingly, we conclude that the district court did not err in granting Facebook’s

motion to dismiss.

1 M.P. also asserts a federal cause of action under 42 U.S.C. § 1985(3), seeking damages for an alleged conspiracy to deprive her of her civil rights. We address that claim and a related argument infra Part II.B.

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I.

A.

Because this appeal involves the district court’s dismissal of M.P.’s complaint under

Federal Rule of Civil Procedure 12(b)(6), we take “as true all of the factual allegations

contained in the complaint” and state the facts in the light most favorable to the plaintiff.

E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)

(citation omitted). As stated in the complaint, in June 2015, Dylann Roof shot and killed

nine people at Mother Emanuel AME Church in Charleston, South Carolina. Among the

dead was M.P.’s father, Reverend Clementa Pinckney. M.P. was present when her father

was murdered.

M.P. later filed suit against Defendant-Appellee Meta Platforms, Inc. and five of its

subsidiaries (collectively, Facebook) asserting that they were civilly liable for damages

caused by Roof’s crimes. 2 M.P. alleges in her complaint that Roof was “radicalized online

by white supremacist propaganda that was directed to him by the Defendants.” She also

asserts that, in 2012, when Roof “looked to Google in search of answers for ‘black on white

crime,’” Google directed him “to a website run by a White nationalist group called the

Council of Conservative Citizens.” M.P. avers that this Google search marked the

beginning of Roof’s radicalization process.

2 M.P. also has sued various Russian defendants for “promot[ing] white supremacist theories and plant[ing] hundreds of hate propaganda messages online meant to inspire and grow the white supremacy movement” in the United States. However, because these defendants are not part of this appeal, this opinion focuses solely on M.P.’s allegations against Facebook.

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M.P. also alleges in her complaint that Facebook’s “design and architecture” played

a substantial role in Roof’s radicalization. According to M.P., Facebook is optimized to

“maximize user engagement” because user “engagement determines [the company’s]

advertising revenue, which determines [the company’s] profits.” Citing various studies,

M.P. alleges that divisive content, including extremist and racist content, results in the

highest level of viewer engagement on Facebook. And so M.P. asserts that to maximize

viewer engagement, Facebook, through its content-sorting algorithm, promotes that type

of content, particularly to those who express an interest in it. M.P. alleges that “repeated

exposure to [such] inflammatory [content] result[s] in emotional desensitization,” while

“extended” exposure to “extremist content” leads to “radicalization.” And M.P. further

asserts that Facebook’s quest for user engagement and profit has led to multiple instances

of offline violence. See, e.g., J.A. 35 (detailing Facebook’s alleged role in the Rohingya

genocide in Burma).

M.P. alleges that Facebook’s algorithm fed Roof content that “nurtured, encouraged,

and ultimately served to solidify and affirm” his racist, violent views. She further asserts

that Facebook’s algorithm recommended extremist groups to Roof and that he “joined

[these] extremist groups on Facebook.” As evidence of Facebook’s role in Roof’s

radicalization, M.P. points to Roof changing his Facebook “profile photo” to include white

supremacist symbols shortly before he murdered M.P.’s father. In sum, M.P. contends that

Facebook is partially responsible for Dylann Roof’s murder of nine innocent people,

including her father.

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B.

M.P.’s complaint contains both state and federal law claims against Facebook. As

stated above, in her claims under South Carolina law, M.P. alleges strict products liability

(Count I), negligence (Count II), and negligent infliction of emotional distress (Count III).

All three state law tort claims rely on the contention that Facebook, “as designed, was in a

defective condition unreasonably dangerous to the user when it left the control of the

defendant.” See J.A. 63 (strict products liability); J.A. 65 (negligence); J.A. 66 (negligent

infliction of emotional distress). In her federal law claim, M.P. alleges that Facebook

participated in a civil conspiracy in violation of 42 U.S.C. § 1985(3).

In response to M.P.’s allegations, Facebook filed a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6). The district court granted Facebook’s motion and entered

final judgment in favor of Facebook under Federal Rule of Civil Procedure 54(b). 3 The

3 Rule 54(b) permits a trial court in a case involving multiple parties or multiple claims to enter final judgment with regard to only some of the parties or some of the claims when the court “expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). We treat Rule 54(b) issues as jurisdictional, Braswell Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1336 (4th Cir. 1993), and we review a district court’s Rule 54(b) certification for abuse of discretion, Kinsale Ins. v. JDBC Holdings, Inc., 31 F.4th 870, 874 (4th Cir. 2022). To comply with Rule 54(b), a district court must “first determine that it is dealing with a ‘final judgment’” and next decide “whether there is any just reason for delay.” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7–8 (1980). A district court’s findings of fact on this issue generally are necessary to enable appellate review of a Rule 54(b) order, and so our usual course when a district judge has failed to engage in such an analysis has been to “vacate the Rule 54(b) certification and remand (with instructions) for a statement of reasons supporting certification.” Braswell Shipyards, 2 F.3d at 1336. Here, the district court’s Rule 54(b) certification did not provide any specific reasons supporting certification but merely referred in general to the reasoning of the parties. Nevertheless, the parties amply stated their reasons for the court’s consideration. We have (Continued) 6 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 7 of 30

court held that M.P. failed to state a plausible claim for relief against Facebook. In making

this determination, the court first concluded that Section 230 bars M.P.’s state law tort

claims. The court then determined that M.P. failed to plausibly allege a claim under

42 U.S.C. § 1985(3). M.P. now appeals from the district court’s judgment.

II.

We review de novo the district court’s holding granting Facebook’s motion to

dismiss. E.I. du Pont de Nemours, 637 F.3d at 440. To survive a motion to dismiss, a

complaint must contain sufficient facts to state a claim that is “plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In determining whether a plaintiff has

stated a plausible claim to relief, we draw all reasonable inferences in favor of the plaintiff.

Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). “[B]ut we need not accept

the legal conclusions drawn from the facts, and we need not accept as true unwarranted

inferences, unreasonable conclusions, or arguments.” Giarratano v. Johnson, 521 F.3d

298, 302 (4th Cir. 2008) (internal quotation marks and citation omitted).

We first consider M.P.’s South Carolina claims (state tort claims) of strict products

liability, negligence, and negligent infliction of emotional distress. We agree with the

district court that Section 230 bars these claims that M.P. asserts against Facebook. But

reviewed those reasons, and we find that they justify Rule 54(b) certification. Thus, “although further explanation from the district court undoubtedly would have been helpful, we hold that the [district] court did not abuse its discretion in certifying its judgment as final under Rule 54(b).” Fox v. Balt. City Police Dep’t, 201 F.3d 526, 532 (4th Cir. 2000).

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even apart from any consideration of Section 230, we still would be required to affirm the

dismissal of those claims because M.P. has failed to plausibly allege proximate causation

under South Carolina law.

1.

We begin with Section 230. As stated above, M.P.’s state tort claims rely on

common law theories of strict products liability, negligence, and negligent infliction of

emotional distress. Under South Carolina law, there are notable differences between a strict

products liability claim and a negligence claim. See Bragg v. Hi-Ranger, Inc., 462 S.E.2d

321, 326 (S.C. Ct. App. 1995) (explaining that “under a negligence theory, the plaintiff

bears the additional burden of demonstrating the defendant (seller or manufacturer) failed

to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct

of the seller or manufacturer, and liability is determined according to fault”). These

differences, however, are immaterial to our present analysis, which addresses whether

Facebook is immunized by Section 230 from M.P.’s state tort claims because those claims

treat Facebook as a publisher of third-party information. Accordingly, we will address

M.P.’s state tort claims collectively.

The origins of Section 230 can be traced to a 1995 New York state court case,

Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup.

Ct. May 24, 1995) (unpublished). In that case, a New York court considered a defamation

action against an interactive computer service, Prodigy. In doing so, the court confronted

the novel question whether to treat Prodigy as (1) a publisher of information, subject to

strict liability for defamatory statements, or as (2) a distributor, which could be held liable

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under New York common law only if it had knowledge of the defamatory character of the

published statements. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y.

1991) (collecting cases) (explaining the distinction between publishers and distributors

under New York law). The New York court determined that Prodigy was more akin to “an

original publisher than a distributor both because it advertised its practice of controlling

content on its service and because it actively screened and edited messages posted on its

bulletin boards.” Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997) (emphasis

added) (discussing Stratton Oakmont, Inc., 1995 WL 323710). In other words, because

Prodigy attempted to regulate the information on its website, the court held that Prodigy

had subjected itself to publisher liability.

When presented with this decision, Congress viewed the result as threatening “the

vibrant and competitive free market that [existed] for the Internet and other interactive

computer services.” 47 U.S.C. § 230(b)(2). In Congress’ view at the time, “the imposition

of tort liability on service providers for the communications of others represented … simply

another form of intrusive government regulation of speech.” Zeran, 129 F.3d at 330.

Congress responded to this concern by enacting Section 230. Id. at 331; see also 47 U.S.C.

§ 230(b)(4).

Among other things, Section 230 states that “[n]o provider or user of an interactive

computer service 4 shall be treated as the publisher or speaker of any information provided

4 Section 230 defines the term “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides (Continued) 9 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 10 of 30

by another information content provider.” 47 U.S.C. § 230(c)(1). Section 230 further

provides that “[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). We have

determined that, taken together, this statutory language establishes broad immunity from

“‘any cause of action that would make service providers liable for information originating

with a third-party user of the service.’” Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250, 254 n.4 (4th Cir. 2009) (quoting Zeran, 129 F.3d at 330). The broad

immunity conferred by Section 230 thus is restricted to claims that are “based on the

interactive computer service provider’s publication of a third party’s speech.” Erie Ins.

Co. v. Amazon.com, Inc., 925 F.3d 135, 139 (4th Cir. 2019) (emphasis added) (citing Zeran,

129 F.3d at 330).

To establish immunity under Section 230, a defendant must show that “(1) [t]he

defendant is a provider or user of an interactive computer service; (2) the plaintiff’s claim

holds the defendant responsible as the publisher or speaker of any information; and (3) the

relevant information 5 was provided by another information content provider.” Henderson

v. Source for Pub. Data, L.P., 53 F.4th 110, 119 (4th Cir. 2022) (internal quotation marks

and citations omitted). In the present case, the parties do not debate that Facebook is a

provider or user of an interactive computer service (element 1). Nor is there any

meaningful disagreement between the parties that relevant information “was provided by

access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2). 5 We treat the terms “information” and “content” as synonymous in this opinion.

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another information content provider” (element 3). Instead, the present dispute centers on

whether M.P.’s state tort claims seek to hold Facebook responsible as the publisher of third-

party information (element 2).

M.P. argues that the district court erred in concluding that her state tort claims treat

Facebook as a publisher of third-party content. She contends that those claims are centered

on Facebook’s “own design meant to facilitate radicalization and compulsive use of the

platform by driving extreme emotional reactions.” M.P. thus characterizes her state tort

claims as solely dealing with Facebook’s algorithm, which she treats as a “product.” We

are not persuaded by M.P.’s argument.

Under our precedent, “a claim … treats the defendant ‘as the publisher or speaker

of any information’ under § 230(c)(1) if the claim (1) bases the defendant’s liability on the

disseminating of information to third parties and (2) imposes liability based on the

information’s improper content.” Henderson, 53 F.4th at 123. In making this

determination, we do not take a formalistic approach, looking abstractly to the elements of

a cause of action. Id. at 124. Instead, we conduct a case-specific approach, examining

what a plaintiff in a particular case must prove. Id. “Our precedent demands that we ask

whether the claim ‘thrust[s]’ the interactive service provider ‘into the role of a traditional

publisher.’” Id. at 121 (quoting Zeran, 129 F.3d at 332). That is, we consider whether a

plaintiff’s allegations seek “to hold a service provider liable for … deciding whether to

publish, withdraw, postpone or alter content” provided by third parties. Zeran, 129 F.3d

at 330.

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Our decision in Erie Insurance Co. v. Amazon.com, Inc., 925 F.3d 135 (4th Cir.

2019) serves as a practical example of the analysis that we must conduct. In that case, a

plaintiff brought an action against Amazon as the seller of a defective product. Id. at

139–40. While Amazon admittedly published third-party speech in marketing the product,

we rejected the defendant’s immunity claim asserted under Section 230, because the

plaintiff’s claim was not based on “the content of [that] speech” but rested on the

characteristics of the product itself. Id. (emphasis in original). As we later emphasized in

Henderson, to trigger the immunity shield of Section 230, the interactive service provider’s

act of publishing information must be more than a “but-for cause of the harm.” 53 F.4th at

122–23.

By contrast, in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the

plaintiff’s claims were based entirely on the defendant’s publication of third-party speech.

The plaintiff alleged that the defendant negligently and “unreasonably delayed in removing

defamatory messages posted by an unidentified third party, refused to post retractions of

those messages, and failed to screen for similar postings thereafter.” Id. at 328. Because

the plaintiff sought to hold the service provider “liable for its exercise of a publisher’s

traditional editorial functions—such as deciding whether to publish, withdraw, postpone or

alter content,” id. at 330, we determined that the defendant fell “squarely within th[e]

traditional definition of a publisher and, therefore, [was] clearly protected by § 230’s

immunity,” id. at 332.

The case before us is more like Zeran than like Erie Ins. Co. M.P.’s state tort claims

are inextricably intertwined with Facebook’s role as a publisher of third-party content.

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M.P. seeks to hold Facebook liable for disseminating “improper content” on its website.

Henderson, 53 F.4th at 120–21. Crucially, M.P. cannot show that Facebook’s algorithm

was designed in a manner that was unreasonably dangerous for viewers’ use without also

demonstrating that the algorithm prioritizes the dissemination of one type of content over

another. Indeed, without directing third-party content to users, Facebook would have little,

if any, substantive content. Simply stated, M.P. takes issue with the fact that Facebook

allows racist, harmful content to appear on its platform and directs that content to likely

receptive users to maximize Facebook’s profits. 6

While there is widespread concern about Facebook’s use of its algorithm to arrange

and sort racist and hate-driven content, acts of arranging and sorting content are integral to

the function of publishing. See Force v. Facebook, Inc., 934 F.3d 53, 66 (2d Cir. 2019)

(“[A]rranging and distributing third-party information inherently forms ‘connections’ and

‘matches’ among speakers, content, and viewers of content, whether in interactive internet

forums or in more traditional media. That is an essential result of publishing.”). For

instance, newspaper editors choose what articles merit inclusion on their front page and

6 The dissent makes much of Facebook’s “groups you should join” algorithm. See infra pp. 24–25. The dissent argues that through this algorithm, Facebook “explicitly communicates” with users by recommending that they join various groups, including extremist groups. Accordingly, the dissent concludes that Facebook can be held liable for this particular conduct. See infra pp. 25–26. But the dissent’s argument misconstrues M.P.’s complaint. M.P. does not allege that Roof ever saw the words “groups you should join” on Facebook. Nor does she claim that Facebook recommended that Roof join a specific hate group or that Roof actually joined any such group based on a Facebook algorithm referral. So, the dissent ultimately argues a case that M.P. does not make. We thus express no opinion on whether Section 230 immunizes Facebook from liability arising out of that company’s “groups you should join” algorithm. 13 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 14 of 30

what opinion pieces to place opposite the editorial page. These decisions, like Facebook’s

decision to recommend certain third-party content to specific users, have as a goal

increasing consumer engagement. See, e.g., Above the Fold, Cambridge Business English

Dictionary (2011) (explaining that newspaper editors place the stories they think “will sell

the newspaper … above the fold”). But a newspaper company does not cease to be a

publisher simply because it prioritizes engagement in sorting its content. And the fact that

Facebook uses an algorithm to achieve the same result of engagement does not change the

underlying nature of the act that it is performing. Decisions about whether and how to

display certain information provided by third parties are traditional editorial functions of

publishers, notwithstanding the various methods they use in performing that task. 7

In reaching this conclusion, we find persuasive the decisions of our sister circuits

holding that an interactive computer service does not lose Section 230 immunity because

the company automates its editorial decision-making. See Force, 934 F.3d at 67 (noting

that “‘so long as a third party willingly provides the essential published content, the

interactive service provider receives full immunity regardless of the specific edit[orial] or

selection process’” (quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th

Cir. 2003))); Marshall’s Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1270–71

(D.C. Cir. 2019) (explaining that the use of a neutral algorithm “to present … third-party

7 M.P.’s allegation that Facebook “auto-generated” the Council of Conservative Citizens’ Facebook page does not alter this result. M.P. has not alleged that Roof saw this “auto-generated” page, joined the group, or even “followed” that page. Without further factual enhancement, these allegations are insufficient to state a claim. Thus, the fact that Facebook may have contributed to the formation of this Facebook page is not materially significant to our analysis here.

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data in a particular format” is protected by Section 230); O’Kroley v. Fastcase, Inc., 831

F.3d 352, 355 (6th Cir. 2016) (finding that Google was immunized by Section 230 for

performing “some automated editorial acts on the content, such as removing spaces and

altering font”). Because Facebook has chosen to automate much of its editorial decision-

making, including the publishing of information that forms the basis of M.P.’s state tort

claims before us, those claims are barred by the broad immunity conferred by Section 230.

We recognize that there is a growing body of literature exploring the various harms

resulting from the ongoing evolution of social media companies, like Facebook, which

have expanded their reach under the protective shield of Section 230. 8 But the conclusions

reached by these authors cannot serve as a basis for us to restrict the application of Section

230. We are not free to disregard Section 230 or to limit its application based on our own

assessment of the merits of its expansive reach. The question whether, and to what extent,

Section 230 should be modified is a question for Congress, not for judges.

In sum, we conclude that M.P.’s state tort claims seek to hold Facebook “responsible

‘as the publisher or speaker of [third-party] information.’” Henderson, 53 F.4th at 119.

Accordingly, we hold that the district court did not err in holding that these state tort claims

are precluded by Section 230.

8 See, e.g., Adam D. I. Kramer, et al., Experimental Evidence of Massive-Scale Emotional Contagion Through Social Networks, 111 PNAS 8788 (2014); Max Fisher & Amanda Taub, How Everyday Social Media Users Become Real-World Extremists, N.Y. Times (Apr. 25, 2018), http://www.nytimes.com/2018/04/25/world/asia/facebook- extremism.html [https://perma.cc/VS4J-5CRS] (last visited Oct. 29, 2024).

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2.

But even if Section 230 did not immunize Facebook from M.P.’s state tort claims,

all her claims under South Carolina law would fail for the additional reason that M.P. did

not plausibly allege under South Carolina law the required element of proximate causation.

All three state tort claims, namely, strict products liability, negligence, and negligent

infliction of emotional distress, require that a plaintiff plausibly allege proximate causation.

Bray v. Marathon Corp., 588 S.E.2d 93, 95 (S.C. 2003) (citation omitted) (products liability

claims require proof that a defective product was the proximate cause of injury); Jolly v.

Gen. Elec. Co., 869 S.E.2d 819, 828 (S.C. Ct. App. 2021) (noting that a plaintiff claiming

negligence must show that the defendant’s negligence was the proximate cause of her

injury); Kinard v. Augusta Sash and Door Co., 336 S.E.2d 465, 467 (S.C. 1985) (for a

defendant to be held liable for negligent infliction of emotional distress, a plaintiff must

prove, among other things, that the defendant’s negligence caused death or serious physical

injury to another person). Yet, M.P. has not done so in the present case. 9

To plausibly allege causation under South Carolina law, a plaintiff must aver “both

causation in fact, and legal cause.” Oliver v. S.C. Dep’t of Highways & Pub. Transp., 422

S.E.2d 128, 130 (S.C. 1992). “Causation in fact is proved by establishing the injury would

not have occurred ‘but for’ the defendant’s negligence.” Whitlaw v. Kroger Co., 410 S.E.2d

251, 253 (S.C. 1991) (quoting Bramlette v. Charter-Med.-Columbia, 393 S.E.2d 914, 916

9 Although the district court did not address the issue of causation, the issue was fully briefed by the parties in the district court and in this appeal. So we may consider the issue as a separate basis for affirming the district court’s judgment. See Strickland v. United States, 32 F.4th 311, 372 n.18 (4th Cir. 2022).

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(S.C. 1990)). Meanwhile, “the touchstone of proximate [or legal] cause in South Carolina

is foreseeability.” Young v. Tide Craft, Inc., 242 S.E.2d 671, 675 (S.C. 1978). To be

foreseeable, a plaintiff’s injury must be “a natural and probable consequence of [the

defendant’s negligence].” Bramlette, 393 S.E.2d at 916. A defendant “cannot be charged

with ‘that which is unpredictable or that which could not be expected to happen.’” Young,

242 S.E.2d at 676 (quoting Stone v. Bethea, 161 S.E.2d 171, 173 (S.C. 1968)). In

determining whether a particular injury was foreseeable, the defendant’s conduct must be

viewed “in the light of attendant circumstances.” Stone, 161 S.E.2d at 173.

Here, M.P. has not plausibly alleged that Facebook was the proximate cause of her

injuries. Her specific allegations involving Roof’s use of Facebook are that (1) he viewed

extremist content on Facebook; (2) he “joined extremist groups on Facebook;” and

(3) shortly before June 2015, he changed his Facebook profile picture to one that included

white supremacist symbols. Notably, M.P. does not allege how much time Roof spent on

Facebook or how he became radicalized on the platform. Nor does M.P. provide any factual

foundation causally linking Roof’s Facebook use to his crimes of murder. In short, M.P.

does not offer a plausible argument, or otherwise point to supporting allegations, that

Roof’s horrific acts were a natural and probable consequence of his Facebook use. We

therefore conclude that M.P.’s tort claims under South Carolina law are fatally flawed for

the additional reason that M.P. failed to plausibly allege that Facebook was the proximate

cause of her injuries.

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Finally, we address M.P.’s federal claims. M.P. makes two arguments. First, she

contends that the district court erred in dismissing her claim for relief under 42 U.S.C.

§ 1985(3). That section permits an individual to bring a civil action for damages based on

a conspiracy to deprive a plaintiff of her civil rights. 42 U.S.C. § 1985(3). In the present

case, M.P. contends that she adequately alleged a claim under this statute by asserting that

Facebook conspired with others to deprive African Americans of their fundamental right

to vote by permitting misinformation and hate speech to exist on Facebook’s social media

platform.

Second, M.P. submits on appeal that the district court erred by “ignor[ing] entirely”

her purported claim under 42 U.S.C. § 1986. Under that statute, an individual may file suit

against anyone who has knowledge of a Section 1985 conspiracy and neglects or refuses

to prevent it, despite having the power to do so. Strickland, 32 F.4th at 360. We examine

each argument in turn.

We first address the Section 1985 claim and conclude that M.P. has forfeited any

challenge to the district court’s dismissal of that claim. The only reference in M.P.’s

appellate brief to the district court’s alleged error in dismissing this claim appears in the

“Statement of the Issues” section of her brief. Previously, we have explained that

“‘contentions not raised in the argument section of the opening brief are abandoned.’”

Adbul-Mumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 290 (4th Cir. 2018) (quoting

United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)). Applying this rule here,

we affirm the district court’s dismissal of M.P.’s Section 1985 claim against Facebook.

18 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 19 of 30

We next consider M.P.’s argument that the district court erred by failing to consider

her claim under 42 U.S.C. § 1986. We first observe that M.P. does not mention Section

1986 in her complaint and relies almost exclusively on one conclusory allegation in a 68-

page complaint to assert her claim. Thus, there is a threshold question whether M.P. put

Facebook on notice that she was alleging a claim under Section 1986. See Sansotta v. Town

of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013) (citing Twombly, 550 U.S. at 555); but see

Stanton v. Elliott, 25 F.4th 227, 238 (4th Cir. 2022) (explaining that plaintiffs are not

required to “put a claim under a special heading, quote the statute, or use magic words to

make out a claim”). Nevertheless, we need not resolve the question whether the claim was

adequately pleaded because any such claim was untimely made.

Section 1986 provides a one-year limitations period. See 42 U.S.C. § 1986 (“But

no action under the provisions of this section shall be sustained which is not commenced

within one year after the cause of action has accrued.”). M.P. commenced this action in

November 2022. However, M.P.’s Section 1986 claim could not have accrued any later

than April 2019, when she alleges that she learned about the purported Section 1985

conspiracy to deprive African Americans of their right to vote. Thus, because M.P. filed

her complaint in 2022, more than three years after her Section 1986 claim accrued, that

claim is barred by the one-year statute of limitations. 10 We therefore conclude that the

10 M.P. urges us to consider South Carolina Code § 15-3-40, which tolls personal injury claims advanced by minor plaintiffs until they reach the age of 18. But this state statute is not applicable here. M.P. is asserting a federal claim under a federal statute. In such circumstances, the default federal rule is that “a statute of limitations runs against all persons, even those under a disability, unless the statute expressly provides otherwise.” (Continued) 19 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 20 of 30

district court did not commit reversible error in failing to address M.P.’s Section 1986

claim. Accordingly, we affirm the district court’s dismissal of M.P.’s federal claims.

III.

For these reasons, we affirm the district court’s judgment granting Facebook’s

AFFIRMED

Vogel v. Linde, 23 F.3d 78, 80 (4th Cir. 1994). Section 1986’s text contains no such tolling rule. So South Carolina’s tolling provision cannot save M.P.’s untimely Section 1986 claim. 20 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 21 of 30

RUSHING, Circuit Judge, concurring in the judgment in part and dissenting in part:

Section 230 of the Communications Decency Act, 47 U.S.C. § 230, as interpreted

by this Court, grants broad immunity to interactive computer services for publishing

content provided by others. I agree with the majority that we are not free to disregard or

modify Section 230 “based on our own assessment of the merits of its expansive reach.”

Supra, at 15. But I disagree with the majority about how far Section 230’s protection

extends. In her complaint, M.P. alleges that Facebook acted culpably by inundating her

father’s murderer, Dylann Roof, with violent racist content that radicalized him, resulting

in his act of violence. Under our precedent, Section 230 protects Facebook from liability

for those editorial decisions, as the majority correctly concludes. But M.P. also alleges that

Facebook culpably recommended that Roof join extremist groups on Facebook, where his

radical views were cultivated. Recommending that a user join a group, connect with

another user, or attend an event is Facebook’s own speech, for which it can be held liable,

even under this Court’s precedent. Unlike the majority, I would reverse the district court’s

dismissal of M.P. negligence claims on Section 230 grounds and remand her claims

regarding Facebook’s own conduct, including its group recommendations, for further

proceedings.

As for M.P.’s strict products liability claim and federal claims, I would affirm the

district court’s dismissal. Therefore, I respectfully concur in the judgment in part and

dissent in part.

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Section 230 preempts any state cause of action that is inconsistent with its

prohibition on treating a “provider or user of an interactive computer service . . . as the

publisher or speaker of any information provided by another information content provider.”

47 U.S.C. § 230(c)(1); see id. § 230(e)(3). Our Court has interpreted Section 230 to grant

“broad immunity” to interactive computer services. Zeran v. America Online, Inc., 129

F.3d 327, 331 (4th Cir. 1997). “But it does not insulate a company from liability for all

conduct that happens to be transmitted through the internet.” Henderson v. Source for Pub.

Data, L.P., 53 F.4th 110, 129 (4th Cir. 2022). Instead, a defendant claiming the protection

of Section 230(c)(1) must establish that “(1) [t]he defendant is a ‘provider or user of an

interactive computer service,’” which the parties agree Facebook is; “(2) the plaintiff’s

claim holds the defendant responsible ‘as the publisher or speaker of any information’; and

(3) the relevant information was ‘provided by another information content provider.’”

Henderson, 53 F.4th at 119 (quoting 47 U.S.C. § 230(c)(1)).

A claim treats the defendant as a publisher or speaker of information “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.” Henderson,

53 F.4th at 120–121. A “‘but-for’ causal relationship between the act of publication and

liability” is insufficient for immunity. Id. at 122.

Further, the information at issue in the plaintiff’s claim must be “provided by

another information content provider.” 47 U.S.C. § 230(c)(1) (emphasis added). Section

230(c)(1) does not protect a defendant who “is responsible, in whole or in part, for the

22 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 23 of 30

creation or development of [the] information” at issue. Id. § 230(f)(3) (defining

“information content provider”). In other words, “providers of interactive computer

services are liable . . . for speech that is properly attributable to them.” Nemet Chevrolet,

Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009).

M.P. alleges that Facebook designed its system and underlying algorithms to

“prioritiz[e] divisive and polarizing content, including hate speech and misinformation

about racial groups/minorities, especially when delivering content to users [likely to

engage with it] and recommending that [those] users make new connections or join new

groups.” J.A. 30. These basic allegations underlie all three state-law causes of action M.P.

asserts: strict products liability, negligent products liability, and negligent infliction of

emotional distress. Her complaint focuses on two categories of allegedly defective

products: (1) algorithms that “provide more violent and angry racially based content to

those users the algorithm deem[s] likely to engage” with it, for example, by “fill[ing] users’

News Feeds with disproportionate amounts of hate speech and misinformation,” and

(2) algorithms that “recommend that susceptible users join extremist groups.” J.A. 34, 39,

58.

Applying our Court’s precedent, the majority correctly concludes that Section 230

bars M.P.’s causes of action based on the first category of alleged defects in Facebook’s

algorithms prioritizing certain kinds of third-party content. Though framed in products

liability verbiage, M.P.’s claims undoubtedly seek to hold Facebook liable for

disseminating on its platform improper content provided by others. As the majority

explains, Facebook’s decisions about “whether and how to display certain information

23 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 24 of 30

provided by third parties,” including which third-party information to prioritize in order to

maximize consumer engagement, are akin to “‘a publisher’s traditional editorial

functions.’” Supra, at 12–14 (quoting Zeran, 129 F.3d at 330). M.P. attempts to

characterize the curated collection of negative third-party content Facebook displays on a

susceptible user’s News Feed as Facebook’s own speech. See, e.g., Anderson v. TikTok,

Inc., 116 F.4th 180, 184 (3d Cir. 2024) (holding that TikTok’s algorithm—which

“‘[d]ecid[ed] on the third-party speech that will be included in or excluded from a

compilation’” and then “‘organiz[ed] and present[ed] the included items’” on users’

pages—was TikTok’s own speech and not protected by Section 230 (quoting Moody v.

NetChoice, LLC, 144 S. Ct. 2383, 2402 (2024))). But as the majority concludes, M.P.’s

characterization cannot evade our precedent, which immunizes interactive computer

services for publishing third-party content regardless of the services’ knowledge or intent.

See Zeran, 129 F.3d at 332–333; Anderson, 116 F.4th at 184 n.13 (noting the conflict

between the Third Circuit’s decision and Zeran). So the majority correctly affirms

dismissal of M.P.’s claims based on Facebook publishing and prioritizing hateful third-

party content.

I disagree with the majority, however, regarding the second category of allegedly

defective products: algorithms that recommend Facebook users join extremist groups.

Section 230 does not bar M.P.’s claims based on those defects because recommending a

group, person, or event is Facebook’s own speech, not that of a third party.

Through features like “Groups You Should Join,” Facebook recommends groups,

people, and events to its users. See J.A. 49, 58. Unlike the implicit recommendation that

24 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 25 of 30

attends any editorial decision to feature certain third-party content, Facebook’s

recommendations of groups, people, and events involve platform-produced text that

explicitly communicates to the user. The statement “‘You Should Join’ this hate group” is

Facebook’s own speech; it cannot be attributed to any third party. That statement qualifies

as “information” created by Facebook itself. 47 U.S.C. § 230(f)(3). When Facebook

creates such information and disseminates it on its platform, Facebook is the “information

content provider.” Id. Thus, holding Facebook responsible for its own recommendations

is not treating it “as the publisher or speaker of any information provided by another.” Id.

§ 230(c)(1). And our precedent leaves ample room for liability when interactive computer

services are making recommendations as opposed to merely hosting or arranging third-

party content. See Henderson, 53 F.4th at 128 (holding that a defendant is an “information

content provider” if it “materially contributed” to the “information relevant to liability”);

Nemet Chevrolet, 591 F.3d at 254 (explaining that interactive computer services are liable

“for speech that is properly attributable to them”).

M.P. alleges that Facebook’s algorithms base its group recommendations in part on

analysis of a user’s “engagement on the internet (both on and off of Facebook),” and that

those algorithms “recommend that susceptible users join extremist groups.” J.A. 34. The

input of that process is undoubtedly third-party conduct; for example, M.P. alleges that

Facebook’s algorithms analyzed Roof’s online behavior. But the output—Facebook’s

recommendation that Roof join an extremist group—is just as undoubtedly Facebook’s

own conduct. True, after Roof joined an extremist group on Facebook, he would have seen

information provided by that group, for which Facebook may have acted solely as

25 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 26 of 30

publisher. But M.P. seeks to hold Facebook accountable for recommending that Roof join

the group in the first instance, even if she cannot hold Facebook to account for publishing

the group’s content on its platform. As the late Judge Katzmann explained, “[t]he fact that

Facebook also publishes third-party content should not cause us to conflate its two separate

roles with respect to its users and their information.” Force v. Facebook, Inc., 934 F.3d 53,

83 (2d Cir. 2019) (Katzmann, J., concurring in part and dissenting in part). In one role,

Facebook acts as publisher of its users’ content, and Section 230 provides immunity. But

in the role relevant here, Facebook is not “also immune when it conducts statistical analyses

of that information and delivers a message based on those analyses,” like a

recommendation to join a particular group. Id. That message is Facebook’s own and is not

encompassed within the traditional editorial functions that Section 230 immunizes.

Because Section 230(c)(1) shields Facebook only from claims holding it liable as a

publisher or speaker of information provided by another, it does not bar M.P.’s claims to

the extent they seek to hold Facebook accountable for recommending that Roof join

extremist groups. Therefore, I would reverse the district court’s Section 230 ruling as

regards this category of allegations.

The majority affirms dismissal of all M.P.’s state law claims for the additional reason

that M.P. failed to plausibly allege proximate causation. The district court did not address

causation, and I would remand for it to do so in the first instance with respect to M.P.’s

negligence claims about Facebook’s own conduct like recommendations. However, one of

26 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 27 of 30

M.P.’s state law claims—strict products liability—need not be remanded because it fails

for the separate reason that M.P. has not alleged she is a user or consumer of Facebook or

its algorithms. 1

Although causation ultimately may be difficult to prove in this case, M.P. likely has

pled enough to nudge her negligence claims over the line of plausibility and earn discovery

into whether Roof’s violence was a foreseeable consequence of Facebook’s conduct. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Consider her allegations about Facebook’s

group recommendations. M.P. alleges that Roof “joined extremist groups on Facebook.”

J.A. 24. She alleges that, “based on . . . Roof’s engagement on the internet,” Facebook’s

algorithms directed him “to groups or communities in which his views were cultivated,

developed, and made more extreme.” J.A. 34. She alleges that “64% of all extremist group

joins are due to [Facebook’s] recommendation tools.” J.A. 58. And she alleges that it was

“foreseeable, and indeed known to Facebook,” that “by recommending extremist groups to

those perceived susceptible to such messaging[,] Facebook would radicalize users like

Roof, causing them to support or engage in dangerous or harmful conduct in the offline

world.” J.A. 34; see also, e.g., J.A. 21 (“Facebook/Meta knew at least by 2014 that online

radicalization leads to offline violence.”); J.A. 51–52 (alleging other instances in which

1 Facebook contends that M.P. “must satisfy the user-or-consumer element for each claim” she brings, including negligent products liability. Response Br. 56. The cases Facebook cites, however, do not support the proposition that South Carolina law restricts negligent products liability claims to the user or consumer of the defective product. 27 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 28 of 30

“Facebook’s tendency to cause real-world violence by radicalizing users online has been

demonstrated”).

“Ordinarily, the question of proximate cause is one of fact for the jury.” Jolly v.

Gen. Elec. Co., 869 S.E.2d 819, 828 (S.C. Ct. App. 2021), aff’d sub nom., Jolly v. Fisher

Controls Int’l, LLC, 905 S.E.2d 380 (S.C. 2024) (internal quotation marks omitted); see

also Grooms v. Minute-Maid, 267 F.2d 541, 546 (4th Cir. 1959); Padgett v. Colonial

Wholesale Distrib. Co., 103 S.E.2d 265, 270 (S.C. 1958). Although we can and do affirm

dismissals for failure to adequately plead causation, I find the question in this case much

closer than the majority does. Because the district court did not address causation and M.P.

has had no opportunity to amend her complaint to correct its deficits (if any exist), I would

not affirm dismissal of M.P.’s negligence claims on this alternative ground. Instead, I

would remand her negligence claims regarding Facebook’s own conduct for further

M.P.’s strict products liability claim, however, fails for a separate, incurable reason.

Under South Carolina law, “[o]ne who sells any product in a defective condition

unreasonably dangerous to the user or consumer or to his property is subject to liability for

physical harm caused to the ultimate user or consumer, or to his property,” if “[t]he seller

is engaged in the business of selling such a product,” and “[i]t is expected to and does reach

the user or consumer without substantial change in the condition in which it is sold.” S.C.

Code Ann. § 15-73-10(1) (emphasis added). M.P. alleges that Facebook defectively

designed “its system and that system’s underlying algorithms” and she was injured as a

28 USCA4 Appeal: 23-1880 Doc: 54 Filed: 02/04/2025 Pg: 29 of 30

result. J.A. 63. But M.P. does not claim that she was a user or consumer of Facebook or

its algorithms, as the statute requires. Consequently, she cannot bring a strict products

liability claim under South Carolina law.

While M.P. recognizes she is “a step removed from actual ‘use’ of the product,” she

argues that “such downstream harms can be remedied” under South Carolina’s strict

liability statute because they are “foreseeable.” Opening Br. 61. The South Carolina

Supreme Court, however, has squarely rejected the invitation to “includ[e] a foreseeability

analysis in a determination of whether a plaintiff constitutes a ‘user’ under section 15-73-

10.” Lawing v. Univar, USA, Inc., 781 S.E.2d 548, 556 (S.C. 2015). As that court has

explained, “§ 15-73-10 limits liability to the user or consumer” of the product, Bray v.

Marathon Corp., 588 S.E.2d 93, 96 (S.C. 2003), which terms do not include “all persons

who could foreseeably come into contact with the dangerous nature of a product,” Lawing,

781 S.E.2d at 556 (internal quotation marks omitted). Because M.P. does not allege that

she was a user or consumer of Facebook or its algorithms, I would affirm the district court’s

dismissal of her strict products liability claim on this alternative ground.

Finally, as for M.P.’s federal claims, I agree with the majority that we must affirm.

M.P. waived any challenge to the district court’s dismissal of her 42 U.S.C. § 1985(3) claim

by not contesting it in this Court. And the district court did not err in failing to address a

purported 42 U.S.C. § 1986 claim that did not appear in her complaint.

* * *

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Accordingly, I would affirm dismissal of M.P.’s federal claims and strict products

liability claim. I would reverse the district court’s Section 230 ruling and remand M.P.’s

negligence claims regarding Facebook’s own conduct, like group recommendations, for

further proceedings. Because the majority reaches a different conclusion regarding M.P.’s

negligence claims, I respectfully concur in the judgment in part and dissent in part.