JudicialStatewide NewsTexas Supreme Court Allows Lawsuit Against Facebook for Participating in Sex Trafficking to Proceed

A set of three lawsuits against Facebook for its participation in sex trafficking will continue, after a ruling from the Texas Supreme Court.
June 28, 2021
The Texas Supreme Court ruled last week that a lawsuit against Facebook for sex trafficking may proceed in state district court. 

The claims were brought under a Texas statute that makes a party liable “who intentionally or knowingly benefits from participating in a venture that traffics another person.”

In its opinion, delivered by Justice Jimmy Blacklock, the court found that Section 230 of the Communications Decency Act does not protect Facebook from liability for intentional participation in human trafficking which the plaintiffs alleged in their original lawsuits.

However, the court dismissed plaintiffs’ claims for common law torts, including for negligence, gross negligence, and products liability.

The original lawsuits were filed by minors who became entrapped in sex trafficking after interacting with adult men on Facebook or Instagram. All of the plaintiffs allege that they suffered repeated harm, including being raped. 

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Facebook filed a motion to dismiss the plaintiffs’ claims, arguing that the claims were barred by the protections afforded it under Section 230. The district courts denied the motion to dismiss, as did the Texas Court of Appeals for the 14th District.

It then sought a writ of mandamus from the Texas Supreme Court. A writ of mandamus orders a government official to take an action where there has been an abuse of discretion in an earlier decision. 

In allowing the plaintiffs’ claims against Facebook based on Texas law to proceed, the justices clarified that “we express no opinion on their viability at any later stage of these cases.” In other words, the plaintiffs must prove their allegations against Facebook and have only won the right to continue with the litigation.

The doctrine of preemption has long held that the federal law supersedes the state law when the two are in conflict. However, in this instance, the court found that the state law providing the plaintiffs with a civil liability claim against Facebook was not in conflict with federal law. 

In 2018, Congress passed the “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA), which includes a civil action for sex trafficking and provides that “nothing in section 230 shall be construed to impair or limit any claim in a civil action brought under [FOSTA].”

The Texas Supreme Court justices agreed with the plaintiffs that FOSTA “reflects Congress’s judgment that such [state civil liability] claims were never barred by section 230 in the first place.”

In other words, there is no conflict between state and federal law because the court believes Section 230 and FOSTA allow for state civil liability for intentional participation in sex trafficking, which the plaintiffs alleged in their lawsuit. 

In its dismissal of the common law claims of negligence, gross negligence, and product liability, the Texas Supreme Court noted that the weight of precedent from other courts, including the Fifth Circuit Court of Appeals, grants Facebook immunity from suit based on Section 230. 

Other courts have made clear that a “failure to warn of or protect against” others, the substance of the plaintiffs’ common law tort allegations, is not enough to impose liability on Facebook. 

“This Court, while bound only by decisions of the U.S. Supreme Court, is generally hesitant to contradict the ‘overwhelming weight of authority’ from both lower federal courts and state courts on federal questions.” 

Simply put, a federal question involves a matter of federal law, which Section 230 of the Communications Decency Act is. 

Notwithstanding its decision dismissing the common law torts, the Texas Supreme Court recognized that the “Supreme Court has not addressed the scope of section 230,” and acknowledged Justice Clarence Thomas’s view that ‘the sweeping immunity courts have read into section 230’ should be scaled back or at least reconsidered.”

The civil district courts were urged by the justices to comply with its opinion, but “a writ [of mandamus] will issue only if they do not.”


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Kim Roberts

Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.