FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`CARLY LEMMON; MICHAEL MORBY,
`as surviving parents of Hunter
`Morby (deceased); SAMANTHA
`BROWN; MARLO BROWN, as
`surviving parents of Landen Brown
`(deceased),
`
` No. 20-55295
`
`D.C. No.
`2:19-cv-04504-
`MWF-KS
`
`
`OPINION
`
`Plaintiffs-Appellants,
`
`
`
`v.
`
`
`SNAP, INC., doing business in
`California as Snapchat, Inc.,
`Defendant-Appellee.
`
`Appeal from the United States District Court
`for the Central District of California
`Michael W. Fitzgerald, District Judge, Presiding
`
`Argued and Submitted February 11, 2021
`San Francisco, California
`
`Filed May 4, 2021
`
`
`
`Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit
`Judges, and James David Cain, Jr.,* District Judge.
`
`Opinion by Judge Wardlaw
`
`
`* The Honorable James David Cain, Jr., United States District Judge
`for the Western District of Louisiana, sitting by designation.
`
`

`

`2
`
`
`LEMMON V. SNAP
`
`SUMMARY**
`
`Communications Decency Act
`
`
`
`
`judgment
`the district court’s
`The panel reversed
`
`dismissing on
`the ground of
`immunity under
`the
`Communications Decency Act
`(“CDA”), 47 U.S.C.
`§ 230(c)(1), an amended complaint brought against Snap,
`Inc., a social media provider.
`
`Plaintiffs are the surviving parents of two boys who died
`
`in a high-speed accident, and they alleged that Snap, Inc.
`encouraged their sons to drive at dangerous speeds and
`caused the boys’ deaths through its negligent design of its
`smartphone application Snapchat. The district court held
`that the CDA barred the plaintiffs’ claim because it sought
`to treat Snap, Inc. “as the publisher or speaker of any
`information provided by another
`information content
`provider.” 47 U.S.C. § 230(c)(1).
`
`To determine whether § 230(c)(1) applied to immunize
`
`Snap, Inc. from the plaintiffs’ claims, the panel applied the
`three-prong test set forth in Barnes v. Yahoo!, Inc., 570 F.3d
`1096 (9th Cir. 2009). As to the first prong, the parties did
`not dispute that Snap, Inc. was a provider of an “interactive
`computer service.” As to the second prong, the panel held
`that the plaintiffs’ claim did not treat Snap, Inc. as a
`“publisher or speaker” because the plaintiffs’ claims turned
`on Snap, Inc.’s design of Snapchat. Plaintiffs’ negligent
`design lawsuit treated Snap, Inc. as a products manufacturer,
`
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

`3
`
`LEMMON V. SNAP
`
`
`
`accusing it of negligently designing a product (Snapchat)
`with a defect (the interplay between Snapchat’s reward
`system and its Speed Filter); thus, the duty that Snap, Inc.
`allegedly violated sprung from its distinct capacity as a
`product designer. The duty to design a reasonably safe
`product was fully independent of Snap, Inc.’s role in
`monitoring or publishing third-party content. As to the third
`prong, the panel held that plaintiffs had not relied on
`“information provided by another information content
`provider.” In short, Snap, Inc. was sued for the predictable
`consequences of designing Snapchat in such a way that it
`allegedly encouraged dangerous behavior. Accordingly, the
`panel concluded that Snap, Inc. did not enjoy immunity from
`this suit under § 230(c)(1) of the CDA.
`
`The panel declined to affirm the district court’s decision
`
`on the alternative ground that the plaintiffs failed to plead
`adequately in their amended complaint the causation
`element of their negligent design claim.
`
`The panel reversed the district court’s Fed. R. Civ. P.
`
`12(b)(6) dismissal, and remanded for further proceedings.
`
`
`
`COUNSEL
`
`
`Naveen Ramachandrappa (argued), Bondurant Mixson &
`Elmore LLP, Atlanta, Georgia, for Plaintiffs-Appellants.
`
`Jonathan H. Blavin (argued) and Rosemarie T. Ring,
`Munger Tolles & Olson LLP, San Francisco, California;
`John B. Major and Anne K. Conley, Munger Tolles & Olson
`LLP, Los Angeles, California; for Defendant-Appellee.
`
`
`
`

`

`4
`
`
`LEMMON V. SNAP
`
`OPINION
`
`WARDLAW, Circuit Judge:
`
`Carly Lemmon, Michael Morby, Samantha Brown, and
`Marlo Brown (“the Parents”) are the surviving parents of
`two boys who died in a tragic, high-speed car accident. They
`sued Snap, Inc. (“Snap”), a social media provider, alleging
`that it encouraged their sons to drive at dangerous speeds and
`thus caused the boys’ deaths through its negligent design of
`its smartphone application Snapchat. We must decide
`whether the district court correctly dismissed that action
`when it concluded that the Communications Decency Act
`(“CDA”) barred the Parents’ claim because it sought to treat
`Snap “as the publisher or speaker of any information
`provided by another
`information content provider.”
`47 U.S.C. § 230(c)(1).
`
`We conclude that, because the Parents’ claim neither
`treats Snap as a “publisher or speaker” nor relies on
`“information provided by another information content
`provider,” Snap does not enjoy immunity from this suit
`under § 230(c)(1). We therefore reverse the district court’s
`Rule 12(b)(6) dismissal of the Parents’ lawsuit and remand
`for further proceedings.
`
`I.
`
`Because the district court dismissed this action pursuant
`to Federal Rule of Civil Procedure 12(b)(6), we accept as
`true the allegations contained in the Parents’ amended
`complaint and view them in the light most favorable to the
`Parents. Dyroff v. Ultimate Software Grp., Inc., 934 F.3d
`1093, 1096 (9th Cir. 2019).
`
`

`

`
`
`
`LEMMON V. SNAP
`
`5
`
`A.
`
`According to the Parents’ amended complaint, Jason
`Davis (age 17), Hunter Morby (age 17), and Landen Brown
`(age 20) were driving down Cranberry Road in Walworth
`County, Wisconsin at around 7:00 p.m. on May 28, 2017.
`Jason sat behind the wheel, Landen occupied the front
`passenger seat, and Hunter rode in the back seat. At some
`point during their drive, the boys’ car began to speed as fast
`as 123 MPH. They sped along at these high speeds for
`several minutes, before they eventually ran off the road at
`approximately 113 MPH and crashed into a tree. Tragically,
`their car burst into flames, and all three boys died.
`
`Shortly before the crash, Landen opened Snapchat, a
`smartphone application, to document how fast the boys were
`going. Snapchat is a social media platform that allows its
`users to take photos or videos (colloquially known as
`“snaps”) and share them with other Snapchat users. To keep
`its users engaged, Snapchat rewards them with “trophies,
`streaks, and social recognitions” based on the snaps they
`send. Snapchat, however, does not tell its users how to earn
`these various achievements.
`
`The app also permits its users to superimpose a “filter”
`over the photos or videos that they capture through Snapchat
`at the moment they take that photo or video. Landen used
`one of these filters—the “Speed Filter”—minutes before the
`fatal accident on May 28, 2017. The Speed Filter enables
`Snapchat users to “record their real-life speed.” An example
`
`

`

`LEMMON V. SNAP
`
`6
`
`of the digital content that a Snapchat user might create with
`this filter is portrayed below.
`
`
`
`A Snapchat user could also “overlay” the above information
`onto a mobile photo or video that they previously captured.
`
`

`

`
`
`
`LEMMON V. SNAP
`
`7
`
`Many of Snapchat’s users suspect, if not actually
`“believe,” that Snapchat will reward them for “recording a
`100-MPH or faster [s]nap” using
`the Speed Filter.
`According to plaintiffs, “[t]his is a game for Snap and many
`of its users” with the goal being to reach 100 MPH, take a
`photo or video with the Speed Filter, “and then share the
`100-MPH-Snap on Snapchat.”
`
`Snapchat allegedly knew or should have known, before
`May 28, 2017, that its users believed that such a reward
`system existed and that the Speed Filter was therefore
`incentivizing young drivers to drive at dangerous speeds.
`Indeed, the Parents allege that there had been: a series of
`news articles about this phenomenon; an online petition that
`“called on Snapchat to address its role in encouraging
`dangerous speeding”; at least three accidents linked to
`Snapchat users’ pursuit of high-speed snaps; and at least one
`other lawsuit against Snap based on these practices. While
`Snapchat warned its users against using the Speed Filter
`while driving, these warnings allegedly proved ineffective.
`And, despite all this, “Snap did not remove or restrict access
`to Snapchat while traveling at dangerous speeds or otherwise
`properly address the danger it created.”
`
`B.
`
`On May 23, 2019, Hunter’s and Landen’s parents filed
`this negligent design lawsuit against Snap. Snap moved to
`dismiss the Parents’ initial complaint for failure to state a
`claim under Federal Rule of Civil Procedure 12(b)(6),
`contending that the Parents had failed to allege a plausible
`negligence claim and that the Communications Decency Act
`immunized it from liability. The district court agreed and
`dismissed the Parents’ first complaint for failure to allege “a
`causal connection between Defendant’s Speed Filter and the
`car accident” and because it was “not clear whether their
`
`

`

`LEMMON V. SNAP
`
`8
`
`claim is barred under the [CDA].” However, it granted leave
`to amend so that the Parents could cure these deficiencies.
`
`On November 18, 2019, the Parents filed an amended
`complaint, which Snap moved to dismiss on the same
`grounds as before. This time, the district court granted the
`motion to dismiss solely on the basis of immunity under
`47 U.S.C. § 230(c)(1). Because it concluded that the CDA
`rendered Snap immune from the Parents’ claim, it did not
`address Snap’s argument that the Parents had again failed to
`plead causation adequately. The district court denied further
`leave
`to amend, and entered a final
`judgment on
`February 25, 2020. The Parents then filed this timely appeal.
`
`II.
`
`We review de novo both the district court’s order
`dismissing the Parents’ claim pursuant to Federal Rule of
`Civil Procedure 12(b)(6) and any questions of statutory
`interpretation that informed that decision. Dyroff, 934 F.3d
`at 1096. The Parents’ amended complaint will survive at this
`stage if it states “a plausible claim for relief,” i.e., if it
`permits “the reasonable inference that the defendant is liable
`for the misconduct alleged.” Id. (citation omitted). This
`standard requires determining whether the CDA bars the
`Parents’ claim as pleaded in the amended complaint. See id.
`
`III.
`
`In 1996, when the internet was young and few of us
`understood how it would transform American society,
`Congress passed the CDA. See 47 U.S.C. § 230. That act
`“provide[d] internet companies with immunity from certain
`claims” in order “‘to promote the continued development of
`the Internet and other interactive computer services.’”
`HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676,
`
`

`

`9
`
`LEMMON V. SNAP
`
`
`
`681 (9th Cir. 2019) (quoting 47 U.S.C. § 230(b)(1)).
`Specifically, Congress commanded that “[n]o provider or
`user of an interactive computer service shall be treated as the
`publisher or speaker of any information provided by another
`information content provider.”1 47 U.S.C. § 230(c)(1); see
`also id. § 230(e)(3) (explicitly preempting any state or local
`law inconsistent with this section). Though somewhat
`jargony,
`this provision shields
`from
`liability
`those
`individuals or entities that operate internet platforms, to the
`extent their platforms publish third-party content.
`
`To determine whether § 230(c)(1) applies here—and
`thus immunizes Snap from the Parents’ claim—we apply the
`three-prong test set forth in Barnes v. Yahoo!, Inc., 570 F.3d
`1096 (9th Cir. 2009). Snap thus enjoys CDA immunity only
`if it is “(1) a provider or user of an interactive computer
`service (2) whom a plaintiff seeks to treat, under a state law
`cause of action, as a publisher or speaker (3) of information
`provided by another information content provider.” Dyroff,
`934 F.3d at 1097 (quoting Barnes, 570 F.3d at 1100–01).
`We examine each of these questions in turn.
`
`A.
`
`The parties do not dispute that Snap is a provider of an
`“interactive computer service,” and we agree that Snap
`qualifies as one given the CDA’s “expansive” definition of
`
`1 The statute defines an “interactive computer service” as “any
`information service, system, or access software provider that provides or
`enables computer access by multiple users to a computer server,
`including specifically a service or system that provides access to the
`Internet . . . .” 47 U.S.C. § 230(f)(2). Meanwhile, an “information
`content provider” is “any person or entity that is responsible, in whole or
`in part, for the creation or development of information provided through
`the Internet or any other interactive computer service.” Id. § 230(f)(3).
`
`

`

`LEMMON V. SNAP
`
`10
`
`that term. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1268 (9th
`Cir. 2016) (citation omitted); see also Barnes, 570 F.3d
`at 1101. According to the amended complaint, the Snapchat
`application permits its users to share photos and videos
`through Snap’s servers and the internet. Snapchat thus
`necessarily “enables computer access by multiple users to a
`computer server,” 47 U.S.C. § 230(f)(2), and Snap, as the
`creator, owner, and operator of Snapchat, is therefore a
`“provider” of an
`interactive computer service.
` Id.
`§ 230(f)(3).
`
`B.
`
`The second Barnes question asks whether a cause of
`action seeks to treat a defendant as a “publisher or speaker”
`of third-party content.2 Dyroff, 934 F.3d at 1097; Barnes,
`570 F.3d at 1100. We conclude that here the answer is no,
`because the Parents’ claim turns on Snap’s design of
`Snapchat.
`
`this particular context, “publication” generally
`In
`“involve[s] reviewing, editing, and deciding whether to
`publish or
`to withdraw from publication
`third-party
`content.” HomeAway, 918 F.3d at 681 (citation omitted). A
`
`2 The district court and the parties have, at various times, suggested
`that this aspect of the Barnes test is undisputed. Having parsed the
`Parents’ arguments and citations before both our court and the district
`court, we do not agree. Though those arguments could have benefited
`from greater analytic exposition, the Parents have sufficiently preserved
`this issue for our review. In any event, it is within our discretion to reach
`this issue. See In re Mercury Interactive Corp. Secs. Litig., 618 F.3d
`988, 992 (9th Cir. 2010) (noting we may exercise our discretion in this
`regard when “the issue presented is purely one of law and . . . does not
`depend on the factual record developed below” (citation omitted)). We
`exercise that discretion here, given that Snap addressed this issue both in
`its answering brief and before the district court.
`
`

`

`11
`
`LEMMON V. SNAP
`
`
`
`defamation claim is perhaps the most obvious example of a
`claim that seeks to treat a website or smartphone application
`provider as a publisher or speaker, but it is by no means the
`only type of claim that does so. Barnes, 570 F.3d at 1101–
`02; see also Doe v. Internet Brands, Inc., 824 F.3d 846, 851
`(9th Cir. 2016). Thus, regardless of the type of claim
`brought, we focus on whether “the duty the plaintiff alleges”
`stems “from the defendant’s status or conduct as a publisher
`or speaker.” Barnes, 570 F.3d at 1107.
`
`Here, the Parents seek to hold Snap liable for its
`allegedly “unreasonable and negligent” design decisions
`regarding Snapchat. They allege that Snap created:
`(1) Snapchat; (2) Snapchat’s Speed Filter; and (3) an
`incentive system within Snapchat that encouraged its users
`to pursue certain unknown achievements and rewards. The
`Speed Filter and the incentive system then supposedly
`worked in tandem to entice young Snapchat users to drive at
`speeds exceeding 100 MPH.
`
`The Parents thus allege a cause of action for negligent
`design—a common products liability tort. This type of claim
`rests on the premise that manufacturers have a “duty to
`exercise due care in supplying products that do not present
`an unreasonable risk of injury or harm to the public.” Lewis
`Bass, Prods. Liab.: Design & Mfg. Defects § 2.5 (2d ed.,
`Sept. 2020 Update). Thus, a negligent design action asks
`whether a reasonable person would conclude that “the
`reasonably foreseeable harm” of a product, manufactured in
`accordance with its design, “outweigh[s] the utility of the
`product.” Merrill v. Navegar, Inc., 28 P.3d 116, 125 (Cal.
`2001) (citation omitted); see also Morden v. Cont’l AG,
`611 N.W.2d 659, 674 (Wis. 2000) (explaining that the
`relevant “duty of care requires manufacturers to foresee all
`reasonable uses and misuses and the consequent foreseeable
`
`

`

`LEMMON V. SNAP
`
`12
`
`dangers” of their products “and to act accordingly” (citation
`omitted)).3
`
`The duty underlying such a claim differs markedly from
`the duties of publishers as defined
`in
`the CDA.
`Manufacturers have a specific duty to refrain from designing
`a product that poses an unreasonable risk of injury or harm
`to consumers. See Dan B. Dobbs et al., Dobbs’ Law of Torts
`§ 478 (2d ed., June 2020 Update). Meanwhile, entities
`acting solely as publishers—i.e., those that “review[]
`material submitted for publication, perhaps edit[] it for style
`or technical fluency, and then decide[] whether to publish
`it,” Barnes, 570 F.3d at 1102—generally have no similar
`duty. See Dobbs’ Law of Torts § 478.
`
`It is thus apparent that the Parents’ amended complaint
`does not seek to hold Snap liable for its conduct as a
`publisher or speaker. Their negligent design lawsuit treats
`Snap as a products manufacturer, accusing it of negligently
`designing a product (Snapchat) with a defect (the interplay
`between Snapchat’s reward system and the Speed Filter).
`Thus, the duty that Snap allegedly violated “springs from”
`its distinct capacity as a product designer. Barnes, 570 F.3d
`at 1107. This is further evidenced by the fact that Snap could
`have satisfied its “alleged obligation”—to take reasonable
`measures to design a product more useful than it was
`foreseeably dangerous—without altering the content that
`
`3 The parties have agreed that the tort law of either California or
`Wisconsin governs in this case. See generally Restatement (Second) of
`Torts § 398 (1965) (“A manufacturer of a chattel made under a plan or
`design which makes it dangerous for the uses for which it is
`manufactured is subject to liability to others whom he should expect to
`use the chattel or to be endangered by its probable use for physical harm
`caused by his failure to exercise reasonable care in the adoption of a safe
`plan or design.”).
`
`

`

`LEMMON V. SNAP
`
`
`
`Snapchat’s users generate. Internet Brands, 824 F.3d at 851.
`Snap’s alleged duty in this case thus “has nothing to do with”
`its editing, monitoring, or removing of the content that its
`users generate through Snapchat. Id. at 852.
`
`13
`
`To the extent Snap maintains that CDA immunity is
`appropriate because the Parents’ claim depends on the ability
`of Snapchat’s users to use Snapchat to communicate their
`speed to others, it disregards our decision in Internet Brands.
`That Snap allows its users to transmit user-generated content
`to one another does not detract from the fact that the Parents
`seek to hold Snap liable for its role in violating its distinct
`duty to design a reasonably safe product. As in Internet
`Brands, Snap “acted as the ‘publisher or speaker’ of user
`content by” transmitting Landen’s snap, “and that action
`could be described as a ‘but-for’ cause of [the boys’]
`injuries.” 824 F.3d at 853. This is unsurprising: Snap “is
`an internet publishing business. Without publishing user
`content, it would not exist.” Id. But though publishing
`content is “a but-for cause of just about everything” Snap is
`involved in, that does not mean that the Parents’ claim,
`specifically, seeks to hold Snap responsible in its capacity as
`a “publisher or speaker.” Id. The duty to design a
`reasonably safe product is fully independent of Snap’s role
`in monitoring or publishing third-party content.4
`
`
`4 Nor would proving causation through the snap that Landen sent
`shortly before his death implicate § 230(c)(1) immunity, because the
`Parents do not fault Snap for publishing that photo message. Instead,
`that snap merely suggests, as circumstantial evidence, that the alleged
`negligent design of Snapchat had the very causal effect that the Parents’
`otherwise allege. By contrast, we note that the Parents would not be
`permitted under § 230(c)(1) to fault Snap for publishing other Snapchat-
`user content (e.g., snaps of friends speeding dangerously) that may have
`incentivized the boys to engage in dangerous behavior. For attempting
`
`
`

`

`14
`
`
`LEMMON V. SNAP
`
`Because the Parents’ claim does not seek to hold Snap
`responsible as a publisher or speaker, but merely “seek[s] to
`hold Snapchat liable for its own conduct, principally for the
`creation of the Speed Filter,” § 230(c)(1) immunity is
`unavailable. Maynard v. Snapchat, Inc., 816 S.E.2d 77,
`81 (Ga. Ct. App. 2018) (emphasis added).
`
`C.
`
`CDA immunity is also unavailable in this case because
`the Parents’ negligent design claim does not turn on
`“information provided by another information content
`provider.” Barnes, 570 F.3d at 1101.
`
`By its plain terms, and as the last part of the Barnes test
`recognizes, § 230(c)(1) cuts off liability only when a
`plaintiff’s claim faults the defendant for information
`provided by third parties. 47 U.S.C. § 230(c)(1). Thus,
`internet companies remain on the hook when they create or
`develop their own internet content. See Fair Hous. Council
`of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
`1157, 1162 (9th Cir. 2008) (en banc). And they also may
`face liability to the extent they are “‘responsible . . . in part,
`for the creation or the development of’ the offending
`content” on the internet. Id. at 1162 (quoting 47 U.S.C.
`§ 230(f)(3)); see also Kimzey, 836 F.3d at 1269 (asking
`whether a defendant “ma[de] a material contribution to the
`creation or development of [the] content” underlying a given
`claim).
`
`
`to hold Snap liable using such evidence would treat Snap as a publisher
`of third-party content, contrary to our holding here. See Section III.C.
`infra.
`
`

`

`
`
`
`LEMMON V. SNAP
`
`15
`
`This case presents a clear example of a claim that simply
`does not rest on third-party content. Snap indisputably
`designed Snapchat’s reward system and Speed Filter and
`made those aspects of Snapchat available to users through
`the internet. See Roommates, 521 F.3d at 1168 (noting that
`the word “develop” in the CDA connotes “making usable or
`available”). And the Parents’ negligent design claim faults
`Snap solely for Snapchat’s architecture, contending that the
`app’s Speed Filter and reward system worked together to
`encourage users to drive at dangerous speeds.
`
`Notably, the Parents do not fault Snap in the least for
`publishing Landen’s snap. Indeed, their amended complaint
`fully disclaims such a reading of their claim: “The danger is
`not the Snap [message using the Speed Filter] itself.
`Obviously, no one is harmed by the post. Rather, the danger
`is the speeding.” AC ¶ 14. While we need not accept
`conclusory allegations contained in a complaint, we must
`nonetheless read the complaint in the light most favorable to
`the Parents. See Dyroff, 934 F.3d at 1096. And this
`statement reinforces our own reading of the Parents’
`negligent design claim as standing independently of the
`content that Snapchat’s users create with the Speed Filter.
`
`To sum up, even if Snap is acting as a publisher in
`releasing Snapchat and its various features to the public, the
`Parents’ claim still rests on nothing more than Snap’s “own
`acts.” Roommates, 521 F.3d 1165. The Parents’ claim thus
`is not predicated on “information provided by another
`information content provider.” Barnes, 570 F.3d at 1101.
`
`Each of Snap’s novel attempts to expand CDA immunity
`beyond these straightforward principles is to no avail. To
`start, while providing content-neutral tools does not render
`an internet company a “creator or developer” of the
`downstream content that its users produce with those tools,
`
`

`

`LEMMON V. SNAP
`
`16
`
`our case law has never suggested that internet companies
`enjoy absolute immunity from all claims related to their
`content-neutral tools. See Dyroff, 934 F.3d at 1099; Kimzey,
`836 F.3d at 1269–70; Roommates, 521 F.3d at 1175. To the
`contrary, “[t]he [CDA] was not meant to create a lawless no-
`man’s-land on the Internet.” Roommates, 521 F.3d at 1164.
`Those who use the internet thus continue to face the prospect
`of liability, even for their “neutral tools,” so long as
`plaintiffs’ claims do not blame them for the content that third
`parties generate with those tools.
`
`Next, the Parents’ allegations concerning the Speed
`Filter and Snapchat’s reward system are not a creative
`attempt to plead around the CDA. In the cases where such
`creative pleading has posed a concern, the plaintiff’s claims,
`at bottom, depended on a third party’s content, without
`which no liability could have existed. See Dyroff, 934 F.3d
`at 1096 (alleging defendant developed content because its
`website’s “recommendation and notification functions were
`‘specifically designed to make subjective, editorial decisions
`about users based on their posts’”); Kimzey, 836 F.3d at 1269
`(alleging defendant developed content when it integrated a
`third party’s defamatory
`review
`“into
`its own
`‘advertisement’ or ‘promotion’ on Google” using its “unique
`star-rating system”). However, as already explained, the
`Parents’ claim does not depend on what messages, if any, a
`Snapchat user employing the Speed Filter actually sends.
`This is thus not a case of creative pleading designed to
`circumvent CDA immunity.
`
`Last, Snap misunderstands the import of our statement in
`Dyroff that a website’s “tools meant to facilitate the
`communication and content of others” were “not content in
`and of themselves.” 934 F.3d at 1098. For even accepting
`that statement at face value, it does nothing to advance
`
`

`

`17
`
`LEMMON V. SNAP
`
`
`
`Snap’s argument. It is by now clear that the Parents’
`negligent design claim does not turn on the content of
`Landen’s particular snap. Thus, if Snapchat’s Speed Filter
`and award system were not content for purposes of the CDA,
`then the Parents’ negligence or negligent design claim would
`rest on no CDA “content” whatsoever, and Snap would still
`receive no immunity. After all, CDA immunity is available
`only to the extent a plaintiff’s claim implicates third-party
`content. See 47 U.S.C. § 230(c)(1).
`
`***
`
`In short, Snap “is being sued for the predictable
`consequences of” designing Snapchat in such a way that it
`allegedly encourages dangerous behavior. Roommates,
`521 F.3d at 1170. The CDA does not shield Snap from
`liability for such claims. See Internet Brands, 824 F.3d
`at 853 (“Congress has not provided an all purpose get-out-
`of-jail-free card for businesses that publish user content on
`the internet, though any claims might have a marginal
`chilling effect on internet publishing businesses.”).
`
`IV.
`
`Snap has also urged us to affirm the district court’s
`decision on the alternative ground that the Parents have
`failed to plead adequately in their amended complaint the
`causation element of their negligent design claim. Though
`we may affirm on any ground supported by law, we decline
`to exercise that discretion here for three reasons. Upper
`Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1654
`(2018).
`
`First, the district court dismissed the Parents’ amended
`complaint based “entirely on the CDA[,] and we refrain from
`deciding an issue that the district court has not had the
`
`

`

`LEMMON V. SNAP
`
`18
`
`opportunity to evaluate.” Roommates, 521 F.3d at 1175
`n.40. Second, the district court stated when it dismissed the
`Parents’ amended complaint that it would ordinarily have
`granted leave to amend, but it declined to do so based on its
`belief that the Parents could not surmount the issue of CDA
`immunity. It thus appears the district court would have
`granted further leave to amend if the sole defect in the
`Parents’ amended complaint was a mere failure to plead
`legal causation. Third, the district court has yet to decide
`whether there exists a conflict between Wisconsin and
`California law on the issue of legal causation. Nor has it
`decided, in the event there is such a conflict, which state’s
`law governs that claim. See generally Cooper v. Tokyo Elec.
`Power Co. Holdings, Inc., 960 F.3d 549, 559 (9th Cir. 2020)
`(laying out the relevant analytic framework), cert. denied
`sub nom. Cooper v. TEPCO, No. 20-730, 2021 WL 1163742
`(U.S. Mar. 29, 2021).
`
`V.
`
`For these reasons, we REVERSE the district court’s
`dismissal of the Parents’ amended complaint on the ground
`of immunity under 47 U.S.C. § 230(c)(1) and REMAND
`this matter for further proceedings consistent with this
`opinion.
`
`