• by Wendy Davis , Yesterday

Google and TikTok are urging a federal appellate court to reject parents' request to revive a lawsuit alleging that the platforms failed to remove dangerous material, including "choking challenge" videos that depict people strangling themselves until they pass out.

In papers filed Thursday with the 9th Circuit Court of Appeals, the tech companies argue that the parents' claims are barred by both First Amendment free speech principles and Section 230 of the Communications Decency Act, which broadly immunizes tech platforms from liability for problematic content posted by users.

The battle dates to 2023, when parents who alleged their children were harmed as a result of material on the platforms, and the Becca Schmill Foundation -- created by the family of 18-year-old Rebecca Mann Schmill, who died of a fentanyl overdose after using social media to obtain drugs -- sued both tech companies.

Parents of two children named in the lawsuit specifically alleged that they died after attempting “choking challenges” they had seen online.

The complaint included claims that Google and TikTok misrepresent that they remove material that violates their content policies, and that the platforms are dangerously defective.

Among other allegations, the plaintiffs -- who described themselves as “modern-day champions and vigilantes" -- said they searched for and reported “choking videos and other harmful videos” to Google's YouTube and TikTok, but that their efforts were “unheeded, ignored, and arbitrarily dismissed” by the platforms.

U.S. District Court Judge Virginia DeMarchi in San Jose, California, dismissed the case last year, ruling that the claims about the platforms' reporting tools actually came down to disputes about content.

The parents are now asking the 9th Circuit to reverse that ruling and allow the lawsuit to proceed.

They argued in papers filed in April that their claims are not about content, but about "defective" reporting tools that "subjected them to friction, confusion, retraumatization, lost time, and futility as they attempted to make the platforms safer for children."

But Google and TikTok counter that allegations regarding allegedly defective reporting mechanisms can't be separated from the platforms' judgments about content.

The claims "are premised on defendants’ alleged failure to perfectly moderate third-party content to plaintiffs’ subjective specifications," the companies argue. "There is only a 'flaw' in defendants’ reporting tools if plaintiffs disagree with defendants’ ultimate decision."

The appellate court has not yet set a date for oral arguments.