M.P., a minor, by and through, Jennifer Pinckney, as Parent, Natural Guardian, and Next Friend, Plaintiff - Appellant, v. META PLATFORMS INC., f/k/a Facebook, Inc.; FACEBOOK PAYMENTS INC.; FACEBOOK TECHNOLOGIES LLC; INSTAGRAM, LLC; SICULUS INC.; FACEBOOK HOLDINGS LLC; INTERNET RESEARCH AGENCY LLC, a/k/a Mediasintez llc, a/k/a Glavset LLC, a/k/a Mixinfo LLC, a/k/a Azimut LLC, a/k/a Novinfo LLC; CONCORD MANAGEMENT AND CONSULTING LLC; CONCORD CATERING; YEVGENIY VIKTOROVICH PRIGOZHIN, Defendant - Appellee.
No. 23-1880
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
February 4, 2025
PUBLISHED. Argued: September 26, 2024.
Affirmed by published opinion. Senior Judge Keenan wrote the opinion, in which Chief Judge Diaz joined. Judge Rushing wrote an opinion concurring in the judgment in part and dissenting in part.
ARGUED: Marc Joseph Mandich, Francois Michael Blaudeau, SOUTHERN INSTITUTE FOR MEDICAL & LEGAL AFFAIRS LLC, Birmingham, Alabama for Appellant. Jacob Thomas Spencer, GIBSON, DUNN & CRUTCHER LLP., Washington, D.C., for Appellee. ON BRIEF: Evan T. Rosemore, SOUTHERN MED LAW, Homewood, Alabama for Appellants. Helgi C. Walker, Jessica L. Wagner, GIBSON, DUNN & CRUTCHER LLP., Washington, D.C., For Appellee.
BARBARA MILANO KEENAN, Senior Circuit Judge:
In 1996, Congress enacted
I.
A.
Because this appeal involves the district court‘s dismissal of M.P.‘s complaint under
M.P. later filed suit against Defendant-Appellee Meta Platforms, Inc. and five of its subsidiaries (collectively, Facebook) asserting that they were civilly liable for damages caused by Roof‘s crimes.2 M.P. alleges in her complaint that Roof was “radicalized online by white supremacist propaganda that was directed to him by the Defendants.” She also asserts that, in 2012, when Roof “looked to Google in search of answers for ‘black on white crime,‘” Google directed him “to a website run by a White nationalist group called the Council of Conservative Citizens.” M.P. avers that this Google search marked the beginning of Roof‘s radicalization process.
M.P. also alleges in her complaint that Facebook‘s “design and architecture” played a substantial role in Roof‘s radicalization. According to M.P., Facebook is optimized to “maximize user engagement” because user “engagement determines [the company‘s] advertising revenue, which determines [the company‘s] profits.” Citing various studies, M.P. alleges that divisive content, including extremist and racist content, results in the highest level of viewer engagement on Facebook. And so M.P. asserts that to maximize viewer engagement, Facebook, through its content-sorting algorithm, promotes that type of content, particularly to those who express an interest in it. M.P. alleges that “repeated exposure to [such] inflammatory [content] result[s] in emotional desensitization,” while “extended” exposure to “extremist content” leads to “radicalization.” And M.P. further asserts that Facebook‘s quest for user engagement and profit has led to multiple instances of offline violence. See, e.g., J.A. 35 (detailing Facebook‘s alleged role in the Rohingya genocide in Burma).
M.P. alleges that Facebook‘s algorithm fed Roof content that “nurtured, encouraged, and ultimately served to solidify and affirm” his racist, violent views. She further asserts that Facebook‘s algorithm
B.
M.P.‘s complaint contains both state and federal law claims against Facebook. As stated above, in her claims under South Carolina law, M.P. alleges strict products liability (Count I), negligence (Count II), and negligent infliction of emotional distress (Count III). All three state law tort claims rely on the contention that Facebook, “as designed, was in a defective condition unreasonably dangerous to the user when it left the control of the defendant.” See J.A. 63 (strict products liability); J.A. 65 (negligence); J.A. 66 (negligent infliction of emotional distress). In her federal law claim, M.P. alleges that Facebook participated in a civil conspiracy in violation of
In response to M.P.‘s allegations, Facebook filed a motion to dismiss under
court held that M.P. failed to state a plausible claim for relief against Facebook. In making this determination, the court first concluded that Section 230 bars M.P.‘s state law tort claims. The court then determined that M.P. failed to plausibly allege a claim under
II.
We review de novo the district court‘s holding granting Facebook‘s motion to dismiss. E.I. du Pont de Nemours, 637 F.3d at 440. To survive a motion to dismiss, a complaint must contain sufficient facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In determining whether a
A.
We first consider M.P.‘s South Carolina claims (state tort claims) of strict products liability, negligence, and negligent infliction of emotional distress. We agree with the district court that Section 230 bars these claims that M.P. asserts against Facebook. But reviewed those reasons, and we find that they justify
even apart from any consideration of Section 230, we still would be required to affirm the dismissal of those claims because M.P. has failed to plausibly allege proximate causation under South Carolina law.
1.
We begin with Section 230. As stated above, M.P.‘s state tort claims rely on common law theories of strict products liability, negligence, and negligent infliction of emotional distress. Under South Carolina law, there are notable differences between a strict products liability claim and a negligence claim. See Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321, 326 (S.C. Ct. App. 1995) (explaining that “under a negligence theory, the plaintiff bears the additional burden of demonstrating the defendant (seller or manufacturer) failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault“). These differences, however, are immaterial to our present analysis, which addresses whether Facebook is immunized by Section 230 from M.P.‘s state tort claims because those claims treat Facebook as a publisher of third-party information. Accordingly, we will address M.P.‘s state tort claims collectively.
The origins of Section 230 can be traced to a 1995 New York state court case, Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (unpublished). In that case, a New York court considered a defamation action against an interactive computer service, Prodigy. In doing so, the court confronted the novel question whether to treat Prodigy as (1) a publisher of information, subject to strict liability for defamatory statements, or as (2) a distributor, which could be held liable
under New York common law only if it had knowledge of the defamatory character of the published statements. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991) (collecting cases) (explaining the distinction between publishers and distributors under New York law). The New York court determined that Prodigy was more akin to “an original publisher than a distributor both because it advertised its practice of controlling content on its service and because it actively screened and edited messages posted on its bulletin boards.” Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997) (emphasis added) (discussing Stratton Oakmont, Inc., 1995 WL 323710). In other words, because Prodigy attempted to regulate the information on its website, the court held that Prodigy had subjected itself to publisher liability.
When presented with this decision, Congress viewed the result as threatening “the vibrant and competitive free market that [existed] for the Internet and other interactive computer services.”
Among other things, Section 230 states that “[n]o provider or user of an interactive computer service4 shall be treated as the publisher or speaker of any information provided
by another information content provider.”
To establish immunity under Section 230, a defendant must show that “(1) [t]he defendant is a provider or user of an interactive computer service; (2) the plaintiff‘s claim holds the defendant responsible as the publisher or speaker of any information; and (3) the relevant information5 was provided by another information content provider.” Henderson v. Source for Pub. Data, L.P., 53 F.4th 110, 119 (4th Cir. 2022) (internal quotation marks and citations omitted). In the present case, the parties do not debate that Facebook is a provider or user of an interactive computer service (element 1). Nor is there any meaningful disagreement between the parties that relevant information “was provided by access to the Internet and such systems operated or services offered by libraries or educational institutions.”
another information content provider” (element 3). Instead, the present dispute centers on whether M.P.‘s state tort claims seek to hold Facebook responsible as the publisher of third-party information (element 2).
M.P. argues that the district court erred in concluding that her state tort claims treat Facebook as a publisher of third-party content. She contends that those claims are centered on Facebook‘s “own design meant to facilitate radicalization and compulsive use of the platform by driving extreme emotional reactions.” M.P. thus characterizes her state tort claims as solely dealing with Facebook‘s algorithm, which she treats as a “product.” We are not persuaded by M.P.‘s argument.
Under our precedent, “a claim ... treats the defendant ‘as the publisher or speaker of any information’ under
Our decision in Erie Insurance Co. v. Amazon.com, Inc., 925 F.3d 135 (4th Cir. 2019) serves as a practical example of the analysis that we must conduct. In that case, a plaintiff brought an action against Amazon as the seller of a defective product. Id. at 139–40. While Amazon admittedly published third-party speech in marketing the product, we rejected the defendant‘s immunity claim asserted under Section 230, because the plaintiff‘s claim was not based on “the content of [that] speech” but rested on the characteristics of the product itself. Id. (emphasis in original). As we later emphasized in Henderson, to trigger the immunity shield of Section 230, the interactive service provider‘s act of publishing information must be more than a “but-for cause of the harm.” Henderson, 53 F.4th at 122–23.
By contrast, in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the plaintiff‘s claims were based entirely on the defendant‘s publication of third-party speech. The plaintiff alleged that the defendant negligently and “unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter.” Id. at 328. Because the plaintiff sought to hold the service provider “liable for its exercise of a publisher‘s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content,” id. at 330, we determined that the defendant fell “squarely within th[e] traditional definition of a publisher and, therefore, [was] clearly protected by § 230‘s immunity,” id. at 332.
The case before us is more like Zeran than like Erie Ins. Co. M.P.‘s state tort claims are inextricably intertwined with Facebook‘s role as a publisher of third-party content.
M.P. seeks to hold Facebook liable for disseminating “improper content” on its website. Henderson, 53 F.4th at 120–21. Crucially, M.P. cannot show that Facebook‘s algorithm was designed in a manner that was unreasonably dangerous for viewers’ use without also demonstrating that the algorithm prioritizes the dissemination of one type of content over another. Indeed, without directing third-party content to users, Facebook would have little, if any, substantive content. Simply stated, M.P. takes issue with the fact that Facebook allows racist, harmful content to appear on its platform and directs that content to likely receptive users to maximize Facebook‘s profits.6
what opinion pieces to place opposite the editorial page. These decisions, like Facebook‘s decision to recommend certain third-party content to specific users, have as a goal increasing consumer engagement. See, e.g., Above the Fold, Cambridge Business English Dictionary (2011) (explaining that newspaper editors place the stories they think “will sell the newspaper ... above the fold“). But a newspaper company does not cease to be a publisher simply because it prioritizes engagement in sorting its content. And the fact that Facebook uses an algorithm to achieve the same result of engagement does not change the underlying nature of the act that it is performing. Decisions about whether and how to display certain information provided by third parties are traditional editorial functions of publishers, notwithstanding the various methods they use in performing that task.7
In reaching this conclusion, we find persuasive the decisions of our sister circuits holding that an interactive computer service does not lose Section 230 immunity because the company automates its editorial decision-making. See Force, 934 F.3d at 67 (noting that “so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific edit[orial] or selection process” (quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003))); Marshall‘s Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1270–71 (D.C. Cir. 2019) (explaining that the use of a neutral algorithm “to present ... third-party
data in a particular format” is protected by Section 230); O‘Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016) (finding that Google was immunized by Section 230 for performing “some automated editorial acts on the content, such as removing spaces and altering font“). Because Facebook has chosen to automate much of its editorial decision-making, including the publishing of information that forms the basis of M.P.‘s state tort claims before us, those claims are barred by the broad immunity conferred by Section 230.
We recognize that there is a growing body of literature exploring the various harms resulting from the ongoing evolution of social media companies, like Facebook, which have expanded their reach under the protective shield of Section 230.8
In sum, we conclude that M.P.‘s state tort claims seek to hold Facebook “responsible ‘as the publisher or speaker of [third-party] information.‘” Henderson, 53 F.4th at 119. Accordingly, we hold that the district court did not err in holding that these state tort claims are precluded by Section 230.
2.
But even if Section 230 did not immunize Facebook from M.P.‘s state tort claims, all her claims under South Carolina law would fail for the additional reason that M.P. did not plausibly allege under South Carolina law the required element of proximate causation. All three state tort claims, namely, strict products liability, negligence, and negligent infliction of emotional distress, require that a plaintiff plausibly allege proximate causation. Bray v. Marathon Corp., 588 S.E.2d 93, 95 (S.C. 2003) (citation omitted) (products liability claims require proof that a defective product was the proximate cause of injury); Jolly v. Gen. Elec. Co., 869 S.E.2d 819, 828 (S.C. Ct. App. 2021) (noting that a plaintiff claiming negligence must show that the defendant‘s negligence was the proximate cause of her injury); Kinard v. Augusta Sash and Door Co., 336 S.E.2d 465, 467 (S.C. 1985) (for a defendant to be held liable for negligent infliction of emotional distress, a plaintiff must prove, among other things, that the defendant‘s negligence caused death or serious physical injury to another person). Yet, M.P. has not done so in the present case.9
To plausibly allege causation under South Carolina law, a plaintiff must aver “both causation in fact, and legal cause.” Oliver v. S.C. Dep‘t of Highways & Pub. Transp., 422 S.E.2d 128, 130 (S.C. 1992). “Causation in fact is proved by establishing the injury would not have occurred ‘but for’ the defendant‘s negligence.” Whitlaw v. Kroger Co., 410 S.E.2d 251, 253 (S.C. 1991) (quoting Bramlette v. Charter-Med.-Columbia, 393 S.E.2d 914, 916
(S.C. 1990)). Meanwhile, “the touchstone of proximate [or legal] cause in South Carolina is foreseeability.” Young v. Tide Craft, Inc., 242 S.E.2d 671, 675 (S.C. 1978). To be foreseeable, a plaintiff‘s injury must be “a natural and probable consequence of [the defendant‘s negligence].” Bramlette, 393 S.E.2d at 916. A defendant “cannot be charged with ‘that which is unpredictable or that which could not be expected to happen.‘” Young, 242 S.E.2d at 676 (quoting Stone v. Bethea, 161 S.E.2d 171, 173 (S.C. 1968)). In determining whether a particular injury was foreseeable, the defendant‘s conduct must be viewed “in the light of attendant circumstances.” Stone, 161 S.E.2d at 173.
Here, M.P. has not plausibly alleged that Facebook was the proximate cause of
B.
Finally, we address M.P.‘s federal claims. M.P. makes two arguments. First, she contends that the district court erred in dismissing her claim for relief under
Second, M.P. submits on appeal that the district court erred by “ignor[ing] entirely” her purported claim under
We first address the Section 1985 claim and conclude that M.P. has forfeited any challenge to the district court‘s dismissal of that claim. The only reference in M.P.‘s appellate brief to the district court‘s alleged error in dismissing this claim appears in the “Statement of the Issues” section of her brief. Previously, we have explained that “contentions not raised in the argument section of the opening brief are abandoned.” Adbul-Mumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 290 (4th Cir. 2018) (quoting United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)). Applying this rule here, we affirm the district court‘s dismissal of M.P.‘s Section 1985 claim against Facebook.
We next consider M.P.‘s argument that the district court erred by failing to consider her claim under
district court did not commit reversible error in failing to address M.P.‘s Section 1986 claim. Accordingly, we affirm the district court‘s dismissal of M.P.‘s federal claims.
III.
For these reasons, we affirm the district court‘s judgment granting Facebook‘s motion to dismiss.
AFFIRMED
Vogel v. Linde, 23 F.3d 78, 80 (4th Cir. 1994). Section 1986‘s text contains no such tolling rule. So South Carolina‘s tolling provision cannot save M.P.‘s untimely Section 1986 claim.
RUSHING, Circuit Judge, concurring in the judgment in part and dissenting in part:
Section 230 of the Communications Decency Act,
As for M.P.‘s strict products liability claim and federal claims, I would affirm the district court‘s dismissal. Therefore, I respectfully concur in the judgment in part and dissent in part.
I.
Section 230 preempts any state cause of action that is inconsistent with its prohibition on treating a “provider or user of an interactive computer service . . . as the publisher or speaker of any information provided by another information content provider.”
A claim treats the defendant as a publisher or speaker of information “when it (1) makes the defendant liable for publishing certain information to third parties, and (2) seeks to impose liability based on that information‘s improper content.” Henderson, 53 F.4th at 120–121. A “‘but-for’ causal relationship between the act of publication and liability” is insufficient for immunity. Id. at 122.
Further, the information at issue in the plaintiff‘s claim must be “provided by another information content provider.”
creation or development of [the] information” at issue.
M.P. alleges that Facebook designed its system and underlying algorithms to “prioritiz[e] divisive and polarizing content, including hate speech and misinformation about racial groups/minorities, especially when delivering content to users [likely to engage with it] and recommending that [those] users make new connections or join new groups.” J.A. 30. These basic allegations underlie all three state-law causes of action M.P. asserts: strict products liability, negligent products liability, and negligent infliction of emotional distress. Her complaint focuses on two categories of allegedly defective products: (1) algorithms that “provide more violent and angry racially based content to those users the algorithm deem[s] likely to engage” with it, for example, by “fill[ing] users’ News Feeds with disproportionate amounts of hate speech and misinformation,” and (2) algorithms that “recommend that susceptible users join extremist groups.” J.A. 34, 39, 58.
Applying our Court‘s precedent, the majority correctly concludes that Section 230 bars M.P.‘s causes of action based on the first category of alleged defects in Facebook‘s algorithms prioritizing certain kinds of third-party content. Though framed in products liability verbiage, M.P.‘s claims undoubtedly seek to hold Facebook liable for disseminating on its platform improper content provided by others. As the majority explains, Facebook‘s decisions about “whether and how to display certain information
provided by third parties,” including which third-party information to prioritize in order to maximize consumer engagement, are akin to “a publisher‘s traditional editorial functions.” Supra, at 12–14 (quoting Zeran, 129 F.3d at 330). M.P. attempts to characterize the curated collection of negative third-party content Facebook displays on a susceptible user‘s News Feed as Facebook‘s own speech. See, e.g., Anderson v. TikTok, Inc., 116 F.4th 180, 184 (3d Cir. 2024) (holding that TikTok‘s algorithm—which “‘decid[ed] on the third-party speech that will be included in or excluded from a compilation‘” and then “‘organiz[ed] and present[ed] the included items‘” on users’ pages—was TikTok‘s own speech and not protected by Section 230 (quoting Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2402 (2024))). But as the majority concludes, M.P.‘s characterization cannot evade our precedent, which immunizes interactive computer services for publishing third-party content regardless of the services’ knowledge or intent. See Zeran, 129 F.3d at 332–333; Anderson, 116 F.4th at 184 n.13 (noting the conflict between the Third Circuit‘s decision and Zeran). So the majority correctly affirms dismissal of M.P.‘s claims based on Facebook publishing and prioritizing hateful third-party content.
I disagree with the majority, however, regarding the second category of allegedly defective products: algorithms that recommend Facebook users join extremist groups. Section 230 does not bar M.P.‘s claims based on those defects because recommending a group, person, or event is Facebook‘s own speech, not that of a third party.
Through features like “Groups You Should Join,” Facebook recommends groups, people, and events to its users. See J.A. 49, 58. Unlike the implicit recommendation that
attends any editorial decision to feature certain third-party content, Facebook‘s recommendations of groups, people, and events involve platform-produced text that explicitly communicates to the user. The statement “‘You Should Join’ this hate group” is Facebook‘s own speech; it cannot be attributed to any third party. That statement qualifies as “information” created by Facebook itself.
M.P. alleges that Facebook‘s algorithms base its group recommendations in part on analysis of a user‘s “engagement on the internet (both on and off of Facebook),” and that those algorithms “recommend that susceptible users join extremist groups.” J.A. 34. The input of that process is undoubtedly third-party conduct; for example, M.P. alleges that Facebook‘s algorithms analyzed Roof‘s online behavior. But the output—Facebook‘s recommendation that Roof join an extremist group—is just as undoubtedly Facebook‘s own conduct. True, after Roof joined an extremist group on Facebook, he would have seen information provided by that group, for which Facebook may have acted solely as
publisher. But M.P. seeks to hold Facebook accountable for recommending that Roof join the group in the first instance, even if she cannot hold Facebook to account for publishing the group‘s content on its platform. As the late Judge Katzmann explained, “[t]he fact that Facebook also publishes third-party content should not cause us to conflate its two separate roles with respect to its users and their information.” Force v. Facebook, Inc., 934 F.3d 53, 83 (2d Cir. 2019) (Katzmann, J., concurring in part and dissenting in part). In one role, Facebook acts as publisher of its users’ content, and Section 230 provides immunity. But in the role relevant here, Facebook is not “also immune when it conducts statistical analyses of that information and delivers a message based on those analyses,” like a recommendation to join a particular group. Id. That message is Facebook‘s own and is not encompassed within the traditional editorial functions that Section 230 immunizes.
Because Section 230(c)(1) shields Facebook only from claims holding it liable as a publisher or speaker of information provided by another, it does not bar M.P.‘s claims to the extent they seek to hold Facebook accountable for recommending that Roof join extremist groups. Therefore, I would reverse the district court‘s Section 230 ruling as regards this category of allegations.
II.
The majority affirms dismissal of all M.P.‘s state law claims for the additional reason that M.P. failed to plausibly allege proximate causation. The district court did not address causation, and I would remand for it to do so in the first instance with respect to M.P.‘s negligence claims about Facebook‘s own conduct like recommendations. However, one of
M.P.‘s state law claims—strict products liability—need not be remanded because it fails for the separate reason that M.P. has not alleged she is a user or consumer of Facebook or its algorithms.1
A.
Although causation ultimately may be difficult to prove in this case, M.P. likely has pled enough to nudge her negligence claims over the line of plausibility and earn discovery into whether Roof‘s violence was a foreseeable consequence of Facebook‘s conduct. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Consider her allegations about Facebook‘s group recommendations. M.P. alleges that Roof “joined extremist groups on Facebook.” J.A. 24. She alleges that, “based on . . . Roof‘s engagement on the internet,” Facebook‘s algorithms directed him “to groups or communities in which his views were cultivated, developed, and made more extreme.” J.A. 34. She alleges that “64% of all extremist group joins are due to [Facebook‘s] recommendation tools.” J.A. 58. And she alleges that it was “foreseeable, and indeed known to Facebook,” that “by recommending extremist groups to those perceived susceptible to such messaging[,] Facebook would radicalize users like Roof, causing them to support or engage in dangerous or harmful conduct in the offline world.” J.A. 34; see also, e.g., J.A. 21 (“Facebook/Meta knew at least by 2014 that online radicalization leads to offline violence.“); J.A. 51–52 (alleging other instances in which
“Facebook‘s tendency to cause real-world violence by radicalizing users online has been demonstrated“).
“Ordinarily, the question of proximate cause is one of fact for the jury.” Jolly v. Gen. Elec. Co., 869 S.E.2d 819, 828 (S.C. Ct. App. 2021), aff‘d sub nom., Jolly v. Fisher Controls Int‘l, LLC, 905 S.E.2d 380 (S.C. 2024) (internal quotation marks omitted); see also Grooms v. Minute-Maid, 267 F.2d 541, 546 (4th Cir. 1959); Padgett v. Colonial Wholesale Distrib. Co., 103 S.E.2d 265, 270 (S.C. 1958). Although we can and do affirm dismissals for failure to adequately plead causation, I find the question in this case much closer than the majority does. Because the district court did not address causation and M.P. has had no opportunity to amend her complaint to correct its deficits (if any exist), I would not affirm dismissal of M.P.‘s negligence claims on this alternative ground. Instead, I would remand her negligence claims regarding Facebook‘s own conduct for further proceedings.
B.
M.P.‘s strict products liability claim, however, fails for a separate, incurable reason. Under South Carolina law, “[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property,” if “[t]he seller is engaged in the business of selling such a product,” and “[i]t is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.”
result. J.A. 63. But M.P. does not claim that she was a user or consumer of Facebook or its algorithms, as the statute requires. Consequently, she cannot bring a strict products liability claim under South Carolina law.
While M.P. recognizes she is “a step removed from actual ‘use’ of the product,” she argues that “such downstream harms can be remedied” under South Carolina‘s strict liability statute because they are “foreseeable.” Opening Br. 61. The South Carolina Supreme Court, however, has squarely rejected the invitation to “includ[e] a foreseeability analysis in a determination of whether a plaintiff constitutes a ‘user’ under section 15-73-10.” Lawing v. Univar, USA, Inc., 781 S.E.2d 548, 556 (S.C. 2015). As that court has explained, ”
III.
Finally, as for M.P.‘s federal claims, I agree with the majority that we must affirm. M.P. waived any challenge to the district court‘s dismissal of her
* * *
Accordingly, I would affirm dismissal of M.P.‘s federal claims and strict products liability claim. I would reverse the district court‘s Section 230 ruling and remand M.P.‘s negligence claims regarding Facebook‘s own conduct, like group recommendations, for further proceedings. Because the majority reaches a different conclusion regarding M.P.‘s negligence claims, I respectfully concur in the judgment in part and dissent in part.