from the gotta-love-those-state-courts dept
So, this is… not great. Last year we wrote about a ridiculously bad ruling in Texas regarding a string of what certainly appear to be vexatious lawsuits that try to blame Facebook for sex trafficking. Texas’s Supreme Court has now made its ruling on the matter and… it completely upends the limits of FOSTA by literally ignoring what the law explicitly says, and insisting it must mean something different. It is one of the strangest rulings I’ve ever seen.
The key issue is that Facebook sought a writ of mandamus, basically asking the Court to say “these lawsuits can’t go forward because of Section 230.” But that apparently requires the Justices on Texas’s Supreme Court to read Section 230, as amended under FOSTA, and understand what it actually says. However, Justice Jimmy Blacklock apparently couldn’t be bothered to do that. You can kind of get a sense of where this is going from the opening:
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. Fair Hous. Council v. Roommates.Com, LLC,
521 F.3d 1157, 1164 (9th Cir. 2008) (en banc). 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. Holding internet platforms accountable for their own misdeeds is quite
another thing. This is particularly the case for human trafficking. Congress recently amended
section 230 to indicate that civil liability may be imposed on websites that violate state and federal
human-trafficking laws. See Allow States and Victims to Fight Online Sex Trafficking Act
(“FOSTA”), Pub. L. No. 115-164, 132 Stat. 1253 (2018). Section 230, as amended, 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
I mean, it’s true that Section 230 does not “create a lawless no-man’s-land on the Internet.” What it does is say that the law applies to the party actually breaking the law and not to the tool or service that they used to do so. But the end of the paragraph is already a bit confused about how FOSTA works, so that’s a bad omen. Things are going to get silly in this ruling.
From there, Blacklock spews some nonsense about how Section 230 is not clear — which is simply not true at all. Indeed, right after saying it’s not clear, he admits that basically all the courts have decided to read Section 230 and promises that his court won’t go against those rulings — even though that’s exactly what he’s about to do. There’s a long digression about Justice Thomas’ random musings on Section 230 — which go against what every other court has decided — and then admits that (again) this court shouldn’t go against what all the courts have actually said about Section 230, which disagree with Thomas’ random unbriefed musings.
The ruling does reject some of the outlandish arguments from the plaintiff, trying to say that you can get around Section 230 with negligence and product liability claims. It correctly notes that those are in fact barred by Section 230.
It’s then on page 23 that the ruling completely runs off the rails. At issue: does Section 230 pre-empt Texas’ state laws regarding sex trafficking in civil cases like these. The obvious and only answer is “yes, it absolutely does.” This isn’t even remotely up for debate because this very issue was discussed and debated in the run-up to FOSTA. Some of the original FOSTA proposals included opening up Section 230 so that state sex trafficking laws would not be pre-empted by 230 — but as many people pointed out, that would open up quite a mess, as such laws are drastically different in every state, and would create a massive loophole for mischief in Section 230. So, instead, Congress clearly and explicitly limited FOSTA to say that Section 230 would no longer apply to federal sex trafficking laws in civil cases. It’s pretty clear from the text that was added to Section 230 in FOSTA:
(5)No effect on sex trafficking law
Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—
(A)any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;
You see how it specifically names 18 USC 1591? That’s because that’s the federal sex trafficking law. And, again, this was added explicitly after debate in Congress that included some proposals that would apply FOSTA broadly to all state sex trafficking laws — and that idea was rejected by Congress — and the law was written to clearly say it only referred to federal sex trafficking law.
But Justice Blacklock ignores all of that, and rather than looking at what the law actually says, notes that because the Plaintiff reads the law wrong, there’s an open question here.
Both parties argue that FOSTA’s changes to section 230 support their positions. As
Facebook understands FOSTA, the 2018 amendments carved out particular causes of action from
the scope of what section 230 otherwise covers. These carved-out claims include a civil action
under 18 U.S.C § 1595 and certain state criminal prosecutions but not civil human-trafficking
claims under state statutes. Although a state-law claim under section 98.002 looks much like the
federal cause of action created by section 1595, the similarity does not transform Plaintiffs’
statutory claims into suits “brought under” section 1595. In Facebook’s view, Congress’s
“meticulous . . . enumeration of exemptions . . . confirms that courts are not authorized to create additional exemptions.” Law v. Siegel, 571 U.S. 415, 424 (2014).
Plaintiffs disagree. They concede that FOSTA does not explicitly except civil humantrafficking claims under state statutes from section 230’s reach. But FOSTA’s silence in that
regard does not answer whether such claims fell under section 230 to begin with. According to
Plaintiffs, the effect of FOSTA was not, as Facebook assumes, to carve out discrete claims that
would otherwise have been barred by section 230. Instead, FOSTA reflects Congress’s judgment
that such claims were never barred by section 230 in the first place. Under this reading, FOSTA’s
“exception” to section 230 immunity for federal section 1595 claims is not merely an exception.
Instead, it is Congress’s announcement of a rule of construction for section 230(c), under which
human-trafficking claims like those found in section 1595 were never covered by section 230. In
Plaintiffs’ view, by indicating that Backpage was wrong and that section 230 should not be
interpreted to bar federal civil statutory human-trafficking claims, Congress must also have been
indicating that analogous state civil statutory human-trafficking claims likewise are not barred.
After all, there is no conceivable difference between the two categories of claims with respect to
whether they “treat” defendants as “speakers or publishers.”
But… that’s literally not even remotely true. FOSTA was absolutely to carve out discrete claims that would have otherwise been barred by Section 230. That was what the entire debate was about. The Plaintiff’s lawyer is making shit up, whole cloth.
And Justice Blacklock bought it. This is embarrassing.
For two reasons, we find Plaintiffs’ view of FOSTA’s impact more convincing. First, what
Facebook calls FOSTA’s “exceptions” to section 230 are not introduced with statutory language
denoting carve-outs (such as “notwithstanding” or “except that . . .”). Instead, Congress instructed
that “[n]othing in [section 230] . . . shall be construed to impair” certain claims. The U.S. Supreme Court, in interpreting a materially identical proviso, declined to view it “as establishing an
exception to a prohibition that would otherwise reach the conduct excepted.” Edward J. DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 582 (1988). Rather, the
language in question “ha[d] a different ring to it.” Id. A clause stating that the provision to which
it applies “‘shall not be construed’ to forbid certain [activity],” was, in the Court’s view, better
read as “a clarification of the meaning of [the provision] rather than an exception” to its general
coverage. Id. at 586. The Court agreed with the Eleventh Circuit, which had also understood the
“shall not be construed” clause as “explain[ing] how the [section] should be interpreted rather than
creating an exception” to it. Fla. Gulf Coast Bldg. & Constr. Trades Council v. NLRB, 796 F.2d
1328, 1344 (11th Cir. 1986). Other courts have construed similar statutory language in the same
Following this line of reasoning, we do not read FOSTA’s instruction that “[n]othing in
[section 230] . . . shall be construed to impair or limit any . . . civil action brought under [18 U.S.C
§] 1595” to merely except section 1595 claims from the scope of what section 230 would otherwise
cover. Rather, the FOSTA proviso announces a rule of construction applicable to section 230.
Congress’s mandate that section 230 not “be construed” to bar federal civil statutory human-trafficking claims necessarily dictates that section 230 must not be construed to bar materially indistinguishable state civil claims either. The elements of the two claims are very similar. If
liability under federal section 1595 would not treat defendants as “speakers or publishers” within
the meaning of section 230, it is hard to understand how liability under Texas’s section 98.002
could possibly do so.
As lawyer Ari Cohn notes, none of this makes any sense at all. The whole point of FOSTA was not a “rule of construction” to explain general ideas on what Section 230 would and would not apply to, but a very specific carveout for federal sex trafficking laws. It’s in the freaking statute. They wouldn’t name the law if that wasn’t what they were specifically carving out.
Then, it gets worse. Justice Blacklock reads way more into the “sense of Congress” part of FOSTA than is reasonable.
Second, another textual indicator favors Plaintiffs’ understanding of FOSTA’s effects. The
“Sense of Congress,” enacted as part of FOSTA’s text, was that “section 230 of the [CDA] was
never intended to provide legal protection to . . . websites that facilitate traffickers in advertising
the sale of unlawful sex acts with sex trafficking victims.” Pub. L. No. 115-164, § 2. If section
230 was “never intended” to immunize defendants against claims brought pursuant to 18 U.S.C
§ 1595, it stands to reason that the provision also never afforded immunity from analogous state-law causes of action….
That is completely misreading what Congress was saying here. They were explicitly carving out federal sex trafficking laws from Section 230 because (they claim) that the original Section 230 went too far in carving out that law. And that law explicitly. Because they name that law. And, it’s not that they didn’t think about state sex trafficking laws. Again, they did so. There was vigorous debate on that very point. And, the next two lines in the law both mention state sex trafficking laws, and when they may be used in criminal prosecutions regarding sex trafficking against an internet service provider. In other words, Congress wasn’t just giving some rambly “oh all sex trafficking laws are exempt from 230” kind of message. It explicitly says that federal sex trafficking law is exempt from 230 for civil suits, and some aspects of state laws can be exempt if they match federal law in criminal cases.
It’s impossible to read that and say “oh Congress actually meant that state laws were always carved out from Section 230 civil cases.” If that were true, then why would it explicitly carve them out for criminal cases in the very next line? It’s mind-bogglingly ridiculous that this is how Justice Blacklock read the law.
As for the whole “sense of Congress” point, that’s basically meaningless, and Facebook tried to argue that, but Justice Blacklock says that you can use it if there’s ambiguity. But there’s no ambiguity in what the law says. Facebook pointed to what the law says. The plaintiff made up some nonsense argument. You don’t just throw up your hands and say “well, there are two different ideas here, so it’s ambiguous.” It’s not.
Even more bizarre then, is the conclusion, in which Justice Blacklock says it’s up to Congress to modernize the laws — which he just totally reinterpreted on his own.
The internet today looks nothing like it did in 1996, when Congress enacted section 230.
The Constitution, however, entrusts to Congress, not the courts, the responsibility to decide
whether and how to modernize outdated statutes. Perhaps advances in technology now allow
online platforms to more easily police their users’ posts, such that the costs of subjecting platforms
like Facebook to heightened liability for failing to protect users from each other would be
outweighed by the benefits of such a reform. On the other hand, perhaps subjecting online
platforms to greater liability for their users’ injurious activity would reduce freedom of speech on
the internet by encouraging platforms to censor “dangerous” content to avoid lawsuits. Judges are
poorly equipped to make such judgments, and even were it otherwise, “[i]t is for Congress, not
this Court, to amend the statute if it believes” it to be outdated.
Except, uh, Congress did update the law in 2018, and that’s the part that’s being debated here — and they updated it explicitly to say that civil suits only are exempted for federal sex trafficking law, and Justice Blacklock ignores that and throws up his hands, insisting that Congress really meant that state laws were never covered by 230, which is just ahistorical nonsense.
Of course, the case is not done with yet, and Facebook might still win (it should) on the merits as the case moves forward, but this just cut a giant hole in 230, and lawyers like the one driving this case are likely going to rush into that hole to file a ton of frivolous and vexatious lawsuits against all sorts of websites, claiming they violated sex trafficking laws. In theory, Facebook could appeal this to the Supreme Court, but that seems incredibly risky these days.
The real irony, of course, is that the only reason FOSTA became law in the first place was because of Facebook’s strong support of the law, and now look how that’s turned out?