Jason Fyk spent eight years challenging a phrase that helped end his lawsuit against Facebook. The Ninth Circuit has finally examined what that phrase means.
By: Maureen Steele
Jason Fyk kept asking a simple question: Where does Section 230 say Facebook cannot be sued?
He asked it after a federal judge dismissed his case. He asked it through years of appeals and motions. In March 2025, he put the point squarely before the Ninth Circuit: courts had repeatedly described Section 230 as “immunity from suit,” but had never actually decided whether Congress granted that protection.
In August 2026, the Ninth Circuit finally examined the question. Its answer was clear. Section 230 provides a defense to liability, not immunity from suit.
For Fyk, that is vindication on a point he refused to surrender. It is also the beginning of a harder question: Will the courts take another look at the judgment that ended his case?
Fyk had built Facebook pages with substantial audiences. He alleged that Facebook blocked or removed his content, devalued the pages, and damaged the business he had built around them. In 2018, he sued, bringing claims that included interference with his economic prospects, fraud, extortion, and unfair competition.
Facebook moved to dismiss. In June 2019, the district court granted its motion without allowing Fyk to amend his complaint. The opinion described Section 230 as “immunity from suit rather than a mere defense to liability,” protection to be applied at the earliest logical point in a case. There was no discovery into what Facebook had done or why.
Fyk did not accept that the word immunity answered the questions raised by his claims. Section 230(c)(1) says an online service cannot be treated as the publisher or speaker of information provided by someone else. But was Facebook being sued merely for a publishing decision? Or did his claims allege distinct unlawful conduct toward his business? Those questions, he argued, required a real examination, not a label that ended the case before the facts could be developed.
The Ninth Circuit affirmed the dismissal in 2020. Fyk kept going. He sought to reopen the judgment and continued pressing the distinction between protection against liability and a right to avoid suit altogether. His March 2025 motion explicitly argued that the original court had treated Section 230 as a sweeping threshold immunity that the statute did not provide.
By then, Fyk had been fighting for years against something larger than a single ruling. Once courts repeatedly call a statute “immunity from suit,” the phrase begins to sound like settled law. A litigant challenging it can be made to look as though he is refusing to accept an answer. But repetition is not the same thing as deciding the question.
That distinction surfaced in a different case involving Meta, TikTok, and lawsuits over alleged harms to young social media users. The companies sought to appeal before the cases reached final judgment. Their position depended on the idea that Section 230 protected them from undergoing the litigation itself. If they had immunity from suit, waiting until the end of a case to appeal could deprive them of that protection.
This time, the Ninth Circuit tested the premise.
The court acknowledged that its earlier opinions had sometimes used “immunity” loosely, even referring to immunity from suit. But those passing descriptions were not binding decisions on a question the court had never formally considered. Congress knows how to grant a right to avoid litigation when it wants to. The Ninth Circuit found no such right in Section 230.
The court held that Section 230 is a defense to liability. Meta and TikTok could continue to assert that defense, but they could not rely on it to take the immediate appeals they sought.
There was another consequential point in the opinion. Courts must examine each claim to determine whether its particular theory of liability would treat the platform as the publisher or speaker of someone else’s content. That means identifying the duty the platform allegedly violated. Calling a company a “publisher” cannot substitute for analyzing what a plaintiff actually says it did wrong.
That matters to Fyk. His 2020 appeal affirmed the conclusion that his claims challenged Facebook’s decisions about publishing and removing content. The August ruling does not erase that decision. But it reinforces the need for a claim-specific inquiry, the very inquiry Fyk contends was short-circuited when his case was dismissed.
The new opinion does not automatically reopen his judgment. Final judgments carry weight, and the rules for setting one aside are demanding. A court may also dismiss a case at the pleading stage if the allegations themselves show that Section 230’s defense applies. Fyk’s path forward depends on persuading a court that the new ruling matters to his case in a way that justifies revisiting its outcome.
He deserves an answer to that argument on its merits.
The stakes extend beyond one man’s Facebook pages. Platforms can decide whether a business reaches its customers, whether a writer finds an audience, and whether years of work remain visible or valuable. Their power does not make every adverse decision unlawful. Nor does Section 230 make every action they take lawful. When someone alleges misconduct, a court should ask what duty was violated, what conduct the claim targets, and whether the statute actually bars liability.
For eight years, Jason Fyk insisted that “immunity from suit” was an answer the law had never given. The Ninth Circuit has now said he was right about that distinction.
Whether his own case can be reopened remains to be seen. But he did something few people could have endured long enough to do: he kept challenging an assumption until the court finally examined it. And when it did, the phrase that had followed him through eight years of litigation could no longer stand as settled law.
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