Key Points

  • The Second District Court of Appeal dismissed Meta and Instagram's certiorari petition challenging the denial of their motion to dismiss the attorney general's FDUTPA suit.
  • The court held that Section 230 of the Communications Decency Act confers a nonabsolute immunity from liability, not an immunity from suit, so the burden of litigating is not irreparable harm.
  • The panel said the Third District's 2011 Giordano decision misconstrued the Florida Supreme Court's Doe v. America Online ruling in describing Section 230 as absolute immunity.
  • The court found no irreparable First Amendment harm because the trial court's order imposed no restrictions, injunctions, or compelled speech on Meta.
  • The panel expressly declined to comment on the merits of the FDUTPA complaint or Meta's Section 230 and First Amendment defenses.

A Florida appeals court on Wednesday refused to halt the state attorney general's lawsuit accusing Meta Platforms Inc. and Instagram LLC of designing features that harm children, holding that a federal law shielding online platforms from liability for users' posts does not spare the companies from having to defend the case.

A three-judge panel of the Second District Court of Appeal dismissed Meta's petition for a writ of certiorari. Judge Smith wrote the opinion, and Judges Morris and Labrit concurred. The ruling leaves in place an order by Pasco County Circuit Judge Alicia Polk denying Meta's motion to dismiss.

The panel held that Section 230 of the Communications Decency Act confers only "a nonabsolute immunity," a defense against liability rather than a right to avoid litigation altogether. Being forced to litigate therefore is not the irreparable harm that certiorari requires, the court said in what it described as a case of first impression.

The attorney general's one-count complaint was brought under the Florida Deceptive and Unfair Trade Practices Act, or FDUTPA. It alleged that Meta's platforms "cause serious harm to children, parents, and the community at large by deploying algorithms and other features designed to hijack the attention of its users, barrage them with advertisements, and relentlessly mine their interactions for monetizable data." The state sought civil penalties as well as temporary and permanent injunctions.

Meta moved to dismiss, arguing that Section 230 gave it immunity from both suit and liability. It also argued that the "design features" the state targeted are directly related to the third-party content on its platforms and are therefore protected by the First Amendment.

The attorney general countered that the complaint did not reach Meta's editorial control of third-party content, which the state conceded is constitutionally protected. Instead, the state argued, the suit targets Meta's own conduct in designing and using what it called "Addictive Features." Judge Polk denied the motion in a brief order, finding that the complaint "sufficiently pleads the claims." Meta did not challenge the denial of its separate argument that the state had failed to state a claim under FDUTPA.

Because Section 230 is not among the immunities for which Florida's appellate rules allow immediate appeals, Meta had to show a material injury that could not be corrected on appeal after final judgment.

Meta likened Section 230 to the absolute immunity of public officials and the like, for whom defending a suit is itself an injury. Smith rejected the comparison, writing that Meta's claim "can hardly be reconciled with these common law absolute and qualified immunity cases where Meta is a private company and holds no special status or position."

Meta also relied on Giordano v. Romeo, a 2011 decision in which the Third District Court of Appeal said a website operator enjoyed "complete immunity" from suits over its users' postings. The Second District said Giordano "misconstrued" the Florida Supreme Court's 2001 decision in Doe v. America Online, which the panel read as treating Section 230 as a preemptive law rather than a grant of absolute immunity. "This was not the holding in Doe," Smith wrote.

Apart from what the panel called "the outlier Giordano," the court said it found no decision holding that Section 230 confers absolute immunity. A footnote cited a 2026 Ninth Circuit ruling in California v. Meta Platforms that treated the statute as a defense to liability and declined review before final judgment, while acknowledging a 2009 Fourth Circuit decision holding that Section 230 confers immunity from suit.

The panel relied instead on two Florida Supreme Court decisions. In Citizens Property Insurance v. San Perdido Association (2012), the high court held that a governmental entity's limited statutory immunity could not support certiorari based only on the burden of continuing to litigate. In Vericker v. Powell (2025), it reached the same result for Florida's anti-SLAPP statute, which protects people from suits over their speech on public issues, then amended the appellate rules by separate opinion to allow immediate appeals of those claims.

Comparable to the statute addressed in San Perdido, Smith wrote, "the plain text of section 230 only narrowly shields providers from claims seeking to treat them as the publisher or speaker of third-party content or to hold them liable for actions related to their screening of objectionable content." Like the anti-SLAPP law, the opinion said, Section 230 lacks any "structural or textual clues that might support an absolute right to be free from litigation," and Meta "asserts nothing more than the hardships of continued litigation."

The panel also rejected Meta's argument that the order subjects it to speech-chilling litigation. Although First Amendment violations can support certiorari, "the challenged order does not come close to infringing on Meta's First Amendment rights," the court wrote. The order did not restrict Meta's speech, grant the state's request for injunctions, or compel Meta to do anything, Smith wrote, adding that "none of Meta's First Amendment rights have been altered."

"Nothing herein shall be construed in any way to constitute a comment on the merits of the Attorney General's FDUTPA complaint or Meta's claim of immunity from liability under section 230 or the First Amendment," the panel wrote in a footnote.

Meta and Instagram were represented by Laura K. Whitmore of Shook, Hardy & Bacon LLP, among other lawyers. Attorney General James Uthmeier, assistant attorneys general and Consumer Protection Division staff represented the Office of the Attorney General, Department of Legal Affairs.

Quoting San Perdido, the panel wrote that a nonabsolute immunity "is not lost merely because review must wait until after a final judgment." The opinion is subject to revision before official publication.