Buffalo’s Mass-Murder Leads to a Wrong Section 230 Decision–Jones v. Mean

You may recall the 2022 Buffalo mass-shooting, which was committed by a murderer responding to the “Great Replacement Theory.” (And yet, many people in the public eye keep referencing and evangelizing the theory despite its direct and repeated role in killing people). The victims sued social media companies for allegedly radicalizing the shooter by exposing him to third-party content. Despite the tragedy, this should be an easy dismissal on Section 230 and causation grounds. Instead, a Buffalo-based New York trial judge rejected the motion to dismiss.

Section 230. As usual nowadays, the plaintiffs relied heavily on product design theories to overcome the obvious Section 230 defense. Some judges recognize that product design theory just rearticulates claims based on third-party content, as it does here because any radicalizing content came from third-parties, not the social media services themselves. This judge takes a different path, invoking its obligation to give plaintiffs the benefit of the doubt regarding motions to dismiss. Here’s the court’s entire Section 230 “analysis” (as opposed to its recap of the parties’ arguments):

plaintiff has set forth sufficient facts with regard to each defendant to allege viable causes of action under a products liability theory. Contrary to the assertions of the defendants, the factual allegations as a whole in the 419 paragraphs of the complaint are sufficient to allege viable causes of action against each of the social media/internet defendants

I guess that’s an approach to judging. When asked why the motion fails, the court points to the entire 419 paragraph complaint and says “res ipsa loquitor.”

The court continues:

The social media/internet defendants may still prove their platforms were mere message boards and/or do not contain sophisticated algorithms thereby providing them with the protections of the CDA and/or First Amendment. In addition, they may yet establish their platforms are not products or that the negligent design features plaintiff has alleged are not part of their platforms. However, at this stage of the litigation the Court must base its ruling on the allegations of the complaint and not “facts” asserted by the defendants in their briefs or during oral argument and those allegations allege viable causes of action under a products liability theory

I trust you instantly spotted some problems. Section 230 isn’t limited to “mere message boards,” nor does Section 230 apply only to the use of “unsophisticated” algorithms (whatever that means). Also, the court conflates “the protections of the CDA and/or First Amendment,” as if they are equivalent and co-extensive (they aren’t). The court also says the defendants can disprove the product and negligent design claims (reminder: plaintiffs bear the burden of proof) but doesn’t explain how; and one of Section 230’s raisons d’etre is to prevent unmeritorious cases from surviving motions to dismiss and opening the door to expensive discovery.

Prima Facie Elements

Given the court’s overdeference to the plaintiffs’ allegations, the court also rejects the defendants’ arguments against the prima facie elements.

Causation. The court correctly notes “there were many events and actions that took place between the shooter beginning and ending his plan to commit a mass shooting which included criminal acts.” Nevertheless, the court says it’s too early to decide if the shooter’s decision to commit mass-murder breaks the causation chain.

Duty. “a manufacturer of a defective product is liable to ‘any person’ injured from the product.” Reminder: we’re talking about content publication, not Ford Pintos or exploding Coke bottles.


I am skeptical this opinion will survive an appeal. The court disregards multiple legal principles to reach an obviously results-driven decision from a judge based in the emotionally distraught community.

The court doesn’t cite other cases involving similar facts, including Gibson v. Craigslist and Godwin v. Facebook. One of the ways judges can reach the results they want is by selectively ignoring the precedent, but that approach doesn’t comply with the rule of law.

This opinion reinforces how the “negligent design” workaround to Section 230 will functionally eliminate Section 230 if courts allow plaintiffs to sue over third-party content by just relabeling their claims.

Case Citation: Jones v. Mean LLC, Index No.: 810316/2023 (N.Y. Supreme Ct. March 18, 2024)

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