First Amendment · Section 230 · AI Liability

Nerdy Skynet!

June 02, 2026

Coverage: 2026-05-26 through 2026-06-02   ·   4 new developments this period

Mayor and City Council of Baltimore v. X Corp

District Court, D. Maryland  · 2026-05-27  · X Corp. (X/Twitter), x.AI Corp. / x.AI LLC (Grok AI system)

Issue: In *Mayor and City Council of Baltimore v. X Corp.*, the City of Baltimore argues that X Corp. and affiliated entities violated Baltimore's Consumer Protection Ordinance by publishing safety policies that expressly prohibited non-consensual intimate imagery and child sexual abuse material while simultaneously operating a generative AI system — Grok — that produced millions of such images, including approximately 23,000 depicting minors, during an eleven-day period in January 2026. The central legal questions are whether Grok's autonomous image output constitutes the defendants' own content creation rather than third-party content (thereby defeating Section 230 immunity), and whether defendants' published acceptable-use policies were actionable false commercial representations under consumer-protection law.

The Mayor and City Council of Baltimore, acting through City Solicitor Ebony M. Thompson, filed this complaint in Baltimore City Circuit Court; the action was subsequently removed to the District of Maryland as Case 1:26-cv-02103-ELH. The complaint is an initiating pleading at the pre-answer stage, naming X Corp., x.AI Corp., x.AI LLC, and SpaceX as defendants. Plaintiff alleges that defendants' own policies — prohibiting deepfakes, non-consensual intimate imagery, and child sexual abuse material — were false when made and throughout the relevant period, because Grok was concurrently generating the very content those policies forbade. The complaint further alleges that when public criticism emerged, defendants restricted the image-editing feature to paying subscribers rather than disabling it, which plaintiff characterizes as monetizing a harmful tool rather than remedying it. Relief sought includes declaratory judgment, a permanent injunction, disgorgement, civil penalties, and attorneys' fees.

Why it matters: This complaint is among the first municipal consumer-protection enforcement actions to directly challenge a generative AI system's design as the source of harmful content, rather than targeting user-generated material hosted on a platform — a framing strategically constructed to route around Section 230 immunity. If courts credit the argument that a generative AI is itself an "information content provider" whose architecture, not user prompting, drives injurious output, the decision would meaningfully narrow the immunity that has historically insulated platform defendants from product-design liability. The policy-as-false-representation theory is the complaint's most doctrinally grounded pillar and could independently establish a template for municipal enforcement against AI companies whose published safety commitments diverge from actual system behavior. The inclusion of SpaceX based on an unconsummated acquisition, and the attribution of Elon Musk's personal social-media activity to corporate defendants, are legally thin theories that will test how far courts are willing to extend consumer-protection liability at the pleading stage in high-profile AI litigation.

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Mayday Health v. Rhoden

District Court, D. South Dakota  · 2 filings

2026-05-29

Issue: In *Mayday Health v. Rhoden*, Plaintiffs Mayday Health and Nancy Turbak Berry argue that South Dakota House Bill 1274 — which bans "advertising" anything related to an "unlawful abortion" — violates the First Amendment as an unconstitutional content- and viewpoint-based restriction on protected speech, and that Section 230 of the Communications Decency Act independently bars enforcement against a website for third-party content it links to but does not author. The question is non-obvious because HB 1274 targets online speech about out-of-state abortion services that may be entirely legal where they occur, placing abortion-access information at the intersection of two powerful federal legal shields — free speech doctrine and platform immunity — that no court has yet applied in this precise configuration.

Plaintiffs filed this opening brief in support of a motion for preliminary injunction before HB 1274 takes effect on July 1, 2026, seeking to halt enforcement before any prosecution occurs. The brief argues that Plaintiffs have standing now because the South Dakota Attorney General's repeated public accusations amount to a credible pre-enforcement threat sufficient under *Babbitt v. UFW* to establish concrete injury through self-censorship. On the merits, Plaintiffs contend that HB 1274 is a viewpoint-based restriction subject to strict scrutiny it cannot survive, citing *Reed v. Town of Gilbert*, *Bigelow v. Virginia*, and recent circuit decisions striking down analogous abortion-speech laws in Idaho. On Section 230, Plaintiffs argue that because nearly all State allegations target content hosted on third-party sites that Mayday merely links to, the statute's express preemption provision bars HB 1274's application to Mayday as a publisher of that content. Plaintiffs seek a preliminary injunction against enforcement and ask that no bond be required.

Why it matters: South Dakota's HB 1274 is among the first state laws to specifically target online advertising and linking related to out-of-state abortion access, putting it on a collision course with both First Amendment doctrine and Section 230 platform immunity simultaneously. The litigation's most consequential unresolved question is whether Section 230 protects a curated health-information aggregator whose entire editorial purpose is to facilitate access to services criminalized in the forum state — a scenario no circuit has directly addressed. Equally unsettled is how courts will handle the legal/illegal transaction distinction when the transaction is lawful where it occurs but forbidden in the state seeking to punish the speech, a fault line that *Bigelow* only partially resolved and that the State is likely to contest through *Pittsburgh Press* and *Central Hudson*. How this case resolves those questions could determine the constitutional boundaries of state power to suppress online health information that crosses state lines.

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2026-05-29

Issue: In *Mayday Health v. Rhoden*, plaintiffs Mayday Health and attorney Nancy Turbak Berry argue that South Dakota HB 1274 (2026), which criminalizes advertising abortion-related services, violates the First Amendment as applied to a nonprofit's health-information website and to an individual's act of wearing a branded sweatshirt bearing abortion-related information. They further contend the statute's "advertise" prohibition is facially overbroad under the First Amendment and, separately, that federal internet immunity law — 47 U.S.C. § 230 — preempts the statute's application to a website that curates and links to third-party reproductive health content. The case presents the unresolved question of whether § 230's express preemption provision displaces a state abortion-advertising law when enforcement would effectively hold a linking or aggregating website liable as a publisher of content it did not create.

On May 29, 2026, plaintiffs filed this initiating complaint in the U.S. District Court for the District of South Dakota, bringing a pre-enforcement challenge under 42 U.S.C. § 1983 against the Governor and Attorney General in their official capacities. The complaint seeks a preliminary and permanent injunction against HB 1274 enforcement and declaratory relief on all four theories. Plaintiffs argue Mayday's website disseminates noncommercial, morally motivated health information entitled to full First Amendment protection, and they cite prior statements by a Southern District of New York judge — made in an earlier Mayday case that was dismissed on abstention grounds without reaching the merits — as persuasive evidence that the speech is protected. Turbak's standing as a plaintiff rests on the State's own prior prosecution theory, which plaintiffs contend establishes a concrete, credible threat that wearing Mayday merchandise could itself trigger criminal liability. On the § 230 theory, plaintiffs characterize Mayday as an interactive computer service provider that links to and aggregates third-party reproductive health content, arguing that HB 1274's enforcement would impose publisher liability for that third-party material in direct conflict with federal law.

Why it matters: This case asks a federal court to decide, for the first time, whether a state law criminalizing abortion-related advertising can be blocked by the federal internet immunity statute that shields websites from liability for content they link to or host but did not create. If the court accepts the § 230 preemption argument, it could constrain how states regulate reproductive health information online regardless of how those laws are drafted, establishing a template that other platforms and advocacy organizations could invoke against similar statutes nationwide. The case also tests a foundational distinction — whether a nonprofit's health-information website constitutes fully protected noncommercial speech or targetable advertising — with significant consequences for advocacy groups operating under restrictive state abortion laws. Platform-law practitioners will watch the court's treatment of the "treated as publisher or speaker" element closely, as its resolution in this politically charged context could shape the outer boundaries of § 230 immunity well beyond the reproductive health field.

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Eric Goldman (Technology & Marketing Law Blog)

Ninth Circuit Panel Goes Out of Its Way to Question Section 230–Doe v. Meta

Eric Goldman (Technology & Marketing Law Blog)  · 2026-05-26

Eric Goldman critically analyzes a Ninth Circuit panel opinion in Doe v. Meta — arising from Facebook's alleged algorithmic amplification of anti-Rohingya hate content in Myanmar — in which the panel sua sponte raised and analyzed Section 230 despite the district court having dismissed the case solely on statute of limitations grounds without mentioning Section 230 at all. Goldman argues this constitutes judicial activism, flags the panel's conflicts-of-laws analysis confirming Section 230 applies even when plaintiffs are foreign and harms occurred abroad, and previews the panel's substantive treatment of product-design workaround arguments — concluding that the alleged defects relate to Facebook's core publishing functions and are therefore within Section 230's scope. The case is significant for the newsletter because it addresses the algorithmic amplification immunity question (the Gonzalez open issue), the product-design carve-out theory, and the extraterritorial reach of Section 230.

Key point: The Ninth Circuit panel's decision to volunteer Section 230 analysis — rejecting plaintiffs' product-design framing of Facebook's algorithmic amplification of rage content as falling within Section 230's publisher immunity — represents a potentially significant (if procedurally irregular) ruling on the scope of Section 230 immunity for recommendation-driven harms.

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Sources: CourtListener API  ·  All 13 federal circuit RSS feeds  ·  All 50 state supreme courts + intermediate appellate courts (8 states) via Justia  ·  Eric Goldman  ·  Techdirt
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