The Second District Court of Appeal held that Section 230 provides only limited immunity from liability, so Meta and Instagram cannot use certiorari to escape the case before trial.
A Florida appellate court has dismissed a petition by Meta Platforms, Inc. and Instagram, LLC seeking to end the Florida Attorney General’s consumer-protection lawsuit over the platforms’ alleged harm to young users. The court held that Section 230 of the Communications Decency Act does not give Meta an absolute right to be free from litigation.
In a Nov. 4, 2026, opinion, Florida’s Second District Court of Appeal concluded that Meta failed to show the irreparable harm required for the court to exercise certiorari jurisdiction over a trial court’s denial of a motion to dismiss. The court did not reach the merits of Meta’s Section 230 or First Amendment defenses, which remain available as the case proceeds in the trial court.
Background
The Attorney General’s one-count complaint, filed in Pasco County, alleges violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). According to the opinion, the complaint alleges that Meta’s platforms use algorithms and other features designed to maximize engagement and that these features are especially harmful to users under 18. The state seeks civil penalties along with temporary and permanent injunctive relief.
Meta moved to dismiss, arguing that Section 230 barred the suit and that the challenged design features are tied to third-party content protected by the First Amendment. The Attorney General responded that the complaint targets Meta’s own conduct in designing and using what the state calls “Addictive Features,” not its editorial control over third-party content. Circuit Judge Alicia Polk denied the motion in a brief order, and Meta petitioned the Second District for a writ of certiorari.
Section 230 Treated as Limited Immunity
Writing for a unanimous panel, Judge Smith, joined by Judges Morris and Labrit, explained that because Section 230 is not among the immunities that Florida’s appellate rules allow to be appealed before final judgment, Meta had to proceed by certiorari. That remedy requires showing a material injury that cannot be corrected on appeal after final judgment. The court described the question, whether Section 230 confers absolute immunity from any lawsuit, as one of first impression in that procedural setting.
The court concluded it does not. Reading the statute’s text, the panel noted that the safe-harbor provisions in subsections (c)(1) and (c)(2) speak to civil liability, and it described subsection (e)(3) as a preemption provision rather than a bar to suit. The court compared Section 230 to the limited statutory immunities that the Florida Supreme Court found insufficient for certiorari review in Citizens Property Insurance v. San Perdido Ass’n and Vericker v. Powell. Like the litigant in Vericker, the panel said, Meta asserted only the ordinary burdens of continuing litigation.
The opinion also took issue with the Third District’s 2011 decision in Giordano v. Romeo, which had described Section 230 as providing absolute immunity. The Second District said Giordano misread the Florida Supreme Court’s decision in Doe v. America Online, Inc., which the panel said treated Section 230 as a preemptive law rather than an absolute immunity. Apart from Giordano, the panel said, its review found no court holding that Section 230 confers absolute immunity. In a footnote, it acknowledged a Fourth Circuit decision treating Section 230 as immunity from suit, while noting that federal decisions other than those of the U.S. Supreme Court do not bind Florida courts.
First Amendment Argument Did Not Establish Irreparable Harm
Meta also argued that denying dismissal deprived it of First Amendment rights and exposed it to speech-chilling litigation. The court disagreed, finding that the order did not alter the status quo. It imposed no restrictions, granted no injunction, and neither limited Meta’s speech nor compelled it to do anything. The panel said the order “does not come close” to infringing Meta’s First Amendment rights.
The court emphasized that its ruling is jurisdictional. In a footnote, it stated that nothing in the opinion should be read as a comment on the merits of the Attorney General’s FDUTPA claim or of Meta’s Section 230 and First Amendment defenses to liability. The opinion also notes that Meta did not challenge the trial court’s denial of dismissal on the separate ground that the Attorney General failed to state a claim under FDUTPA.
Counsel and Case Information
Meta and Instagram were represented by Laura K. Whitmore of Shook, Hardy & Bacon, LLP, and by Timothy C. Hester, Mark W. Mosier and Stephen F. Petkis of Covington & Burling, LLP. Attorney General James Uthmeier and members of his office, including the Consumer Protection Division, represented the state.
The case is Meta Platforms, Inc. v. Office of the Attorney General, Department of Legal Affairs, No. 2D2025-3187 (Fla. 2d DCA Nov. 4, 2026). The opinion is subject to revision before official publication.
Read the full opinion: Meta Platforms, Inc. v. Office of the Attorney General, Department of Legal Affairs, No. 2D2025-3187 — Florida Second District Court of Appeal Opinion (Nov. 4, 2026)
By The Trial Attorneys Editorial Staff
The information contained in this publication is provided for general informational and educational purposes only and is not intended to constitute legal advice, nor should it be relied upon as such.
