Supreme Court Of Nevada Concludes § 230 Does Not Bar Manipulative Design Allegations Against TikTok

Nevada's Supreme Court concluded in TikTok v. Dist. Ct. that TikTok is subject to jurisdiction in Nevada and agreed with other courts that 47 U.S.C. § 230 does not apply to allegations that TikTok has a manipulative design that harms younger users. Multiple states around the country have brought lawsuits against TikTok with similar allegations.

In Nevada, TikTok first challenged specific jurisdiction. It argued that the district court erred by concluding Calder's purposeful direction element was met because TikTok's app has been downloaded "hundreds of thousands of times" in Nevada. The Supreme Court agreed that this fact alone was insufficient to support purposeful direction. However, the court agreed with the Ninth Circuit's reasoning in Briskin v. Shopify. Specifically, Nevada concluded "in the context of web-based companies ... the express-aiming prong may be met through contacts involving data collection and marketing directed at forum residents, whether or not the targeting is differential or tailored to the forum." The plaintiffs met that burden, and personal jurisdiction was present.

TikTok also asserted the allegations did not arise from or relate to its contacts with Nevada "because the State did not allege that TikTok made any statements or omissions or developed any design elements in Nevada." The Supreme Court rejected that argument, noting it was like the contention rejected by the United States Supreme Court in Ford Motor Co. v. Montana Eighth Judicial District Court. "TikTok did not design its platform or make the alleged misrepresentations and omissions in the forum," but its "pervasive digital presence in Nevada" supported a conclusion that TikTok "systematically serves" users in the forum. Thus, specific jurisdiction was established.

TikTok also argued that 47 U.S.C. § 230, more commonly known as § 230 of the Communications Decency Act, protected it from the State's allegations. The court adopted the Ninth Circuit's rationale in Lemmon v. Snap, Inc., and rejected that argument. The allegations against TikTok do "not seek to hold TikTok liable for any third-party content that it publishes." Instead, "the State seeks to hold TikTok liable for its own statements and omissions and resulting duties to users with only a tangential relationship to third-party content." The State "explicitly targets the design of TikTok's platform rather than the content of posted videos...." The Supreme Court distinguished these allegations from those at issue in Moody v. NetChoice, LLC, because the State "explicitly does not seek to curtail or alter the mix of third-party content that TikTok publishes...."

Finally, the Supreme Court concluded that the statements the State alleged TikTok made were not protected by the First Amendment. Again, the State targets TikTok's own statements and "the First Amendment does not protect inherently misleading commercial speech." Further, several of the statements went beyond mere opinion or aspirations that might otherwise be protected.

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