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SCOTX Refuses to Dismiss Houston Sex Trafficking Case Against Facebook

June 25, 2021 Mark Curriden

The Supreme Court of Texas ruled Friday that some – but not all – allegations in three separate lawsuits brought against Facebook by three teenagers who say they were victims of sexual predators can move forward to trial Houston.

In a unanimous opinion, the state’s high court said that Section 230 of the Communications Decency Act does not provide absolute immunity to internet providers such as Facebook in civil lawsuits when their own “misdeeds” are part of the allegation.

The Texas justices ruled that the three teenagers who allege they were raped and forced into sex trafficking after being targeted by predators on Facebook may not pursue basic common law claims such as negligence and products liability in their lawsuits.

But the court said that the plaintiffs’ statutory human-trafficking claims may move forward.

“We do not understand section 230 to ‘create a lawless no-man’s-land on the Internet’ in which states are powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking,” Justice Jimmy Blacklock wrote in his 33-page opinion.

“Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that section 230 does not allow it,” Blacklock wrote. “Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking.”

Warren Harris, a partner at Bracewell in Houston and a lawyer representing the three plaintiffs, told The Texas Lawbook Friday that he is pleased that his clients’ claims are allowed to proceed.

“This will allow the plaintiffs to have a chance to raise their claims in court,” Harris said.

In a written statement, a Facebook spokesperson said the company is “reviewing the decision and considering potential next steps.”

” Sex trafficking is abhorrent and not allowed on Facebook. We will continue our fight against the spread of this content and the predators who engage in it,” the spokesperson said.

The Texas justices ruled that Section 230, as recently amended by Congress, “does not withdraw from the states the authority to protect their citizens from internet companies whose own actions — as opposed to those of their users — amount to knowing or intentional participation in human trafficking.”

Justice Blacklock also said that Section 230 “is no model of clarity” and that there “is ample room for disagreement about its scope.”

“Despite the statutory text’s indeterminacy, the uniform view of federal courts interpreting this federal statute requires dismissal of claims alleging that interactive websites like Facebook should do more to protect their users from the malicious or objectionable activity of other users,” Justice Blacklock wrote.

In dismissing the plaintiffs’ claims for negligence, negligent undertaking, gross negligence and products liability, the Texas justices said they were following the lead of federal courts across the country in view of protections for internet providers provided by Section 230.

“The prevailing judicial interpretation of section 230 has become deeply imbedded in the expectations of those who operate and use interactive internet services like Facebook,” Justice Blacklock wrote. “We are not interpreting section 230 on a clean slate, and we will not put the Texas court system at odds with the overwhelming federal precedent supporting dismissal of the plaintiffs’ common-law claims.”

The three teenagers – two were 14 and one was 15 – sued Facebook in 2018 in Harris County district court claiming that they were victimized by those in the sex trade who used Facebook and Instagram. In their lawsuits, they claim Facebook failed to warn them about the dangers of sexual predators and failed to instill parental safeguards to protect minors. In their lawsuits, the teenagers accused Facebook of committing “overt acts” that encourage sex trafficking on its platform. The lawsuits also state that Facebook “creates a breeding ground for sex traffickers to stalk and entrap survivors.”

Facebook lawyers asked the Texas Supreme Court to dismiss the cases because Section 230 of the CDA legally protects their client from these kinds of “artfully pled” allegations of duty to warn.

The Texas Attorney General’s office has sided with the victims and believes Facebook should be put on trial in Houston.

Two justices, Brett Busby and Rebeca Huddle, recused themselves from the case.

“When legislators immunize certain defendants from liability, the job of courts is to enforce the immunity,” Allyson Ho, a partner at Gibson, Dunn & Crutcher in Dallas and a lawyer for Facebook, told the justices in oral arguments in February.

Ho, who made it clear that Facebook “abhors” the conduct of the predators, told the justices that the plain text of Section 230 bars plaintiffs from treating Facebook as a publisher and from holding it legally responsible for a third party’s speech.

“Failure to warn is no different than a claim that the third party content should not have been published in the first place,” Ho argued. “After all, a warning is an instruction to disregard or not to read or not to attend to the third party content [and] is no different than a decision to not publish the content to begin with.”

Ho argued that there would be nothing to warn readers about if not for the third party content.

Mark Curriden

Mark Curriden is a lawyer/journalist and founder of The Texas Lawbook. In addition, he is a contributing legal correspondent for The Dallas Morning News.

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