• by Wendy Davis  @wendyndavis, January 14, 2025

TikTok plans to ask the Supreme Court to review a recent appellate decision that revived a lawsuit by the mother of a 10-year-old girl who died after attempting a “blackout challenge” she allegedly saw on the service.

The company says in papers filed last week with Justice Samuel Alito and made available Monday that the ruling, issued by the 3rd Circuit Court of Appeals, conflicts with an “unbroken line of decisions” that shield web companies from lawsuits over content posted by users.

TikTok -- which could be banned in the U.S. by Sunday -- is asking Alito to extend the deadline for seeking review from January 21 to February 20. Alito hasn't yet responded to the request.

The company's move comes in a lawsuit by Tawainna Anderson, mother of Nylah Anderson who died in December 2021 after attempting the “blackout challenge.” That challenge, which was then circulating on TikTok, showed people strangling themselves.

Tawainna Anderson raised several claims in her 2022 complaint against TikTok, including that its service is “dangerously defective” due to its algorithm.

Diamond dismissed the suit, ruling that TikTok was protected by Section 230 of the Communications Decency Act -- a 1996 law that generally immunizes web companies from liability over material posted by third parties.

He said in a written opinion that Anderson's claims about TikTok were “inextricably linked” to its role as a publisher of content created by users.

Anderson then appealed to the 3rd Circuit, which revived the case in an opinion written by Circuit Judge Patty Shwartz and joined by Peter Phipps. (Circuit Judge Paul Matey partially concurred in a separate opinion.)

Shwartz wrote that TikTok's algorithmic curation of users' speech is TikTok's own “expressive activity,” and therefore not protected by Section 230.

TikTok says that ruling is an outlier, arguing that for nearly 30 years courts have ruled that web companies are immune from liability for hosting users' speech and also for exercising “traditional editorial functions” over users' content -- including whether to publish, delay or alter it.

“That universal understanding of Section 230 has been pivotal to the development of the modern internet,” TikTok writes.

Some industry observers and legal experts said the 3rd Circuit's ruling effectively guts Section 230 -- at least in Pennsylvania, Delaware and New Jersey, which are within the circuit's jurisdiction.

The Interactive Advertising Bureau is among several outside groups that previously urged the 3rd Circuit to reconsider its ruling. Those organizations argued in a friend-of-the-court brief filed last year that the ruling “destabilizes established law in ways that threaten profound consequences for countless websites across the Internet --and their users.”