Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court

Sex trafficking victims sued Facebook and Instagram in Texas state court for their alleged roles in the victimization. The victims’ claims are not FOSTA-based, even though the cases were filed after FOSTA became law. In May 2019, the trial court rejected Facebook’s motion to dismiss based on Section 230, in an opinion that will not win any awards for exposition by a judge. The opinion briefly recited various precedent cases on both sides, and then tersely concluded: “In reviewing the statute and the cases cited by the parties, the Court concludes that Plaintiffs have plead causes of action that would not be barred by the immunity granted under the Act.”

Facebook challenged this ruling by seeking mandamus. (The Instagram case is on the same trajectory, and the appeals court uses identical opinions for both cases). I don’t understand Texas state court procedures, so I’m not clear why Facebook couldn’t make a “normal” appeal or how the mandamus review standards differ from normal appellate review standards.

In a split opinion, the appeals court rejects Facebook’s mandamus request. The “per curiam” opinion in its entirety:

Each plaintiff in the underlying cases is a minor who connected on Facebook or Instagram (collectively, “Facebook”) with individuals who forced them into human trafficking. The plaintiffs seek to hold Facebook liable for damages resulting from being victimized by trafficking. Facebook filed a Rule 91a1 motion to dismiss each plaintiff’s case against Facebook based on an immunity provision under a Federal statute known as the Communications Decency Act. See 47 U.S.C. § 230.

Facebook filed two petitions for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the first petition filed in our case numbers 14-19-00845-CV and 14-19-00847-CV, Facebook asks this court to compel the Honorable Steven Kirkland, presiding judge of the 334th District Court of Harris County, to set aside his May 23, 2019 orders denying Facebook’s Rule 91a motions to dismiss.

In the second petition filed in our case number 14-19-00886-CV, Facebook asks this court to compel the Honorable Mike Engelhart, presiding judge of the 151st District Court of Harris County, to set aside his October 4, 2019 order denying Facebook’s Rule 91a motion to dismiss.

Facebook has not established that it is entitled to mandamus relief. Accordingly, we deny Facebook’s petitions for writ of mandamus. We also lift our stays issued on November 14, 2019, and November 19, 2019.

In case you missed it, I’m going to replay the court’s substantive “analysis” of the mandamus request: “Facebook has not established that it is entitled to mandamus relief.” So both the trial court and the appeals court basically said “no” to Facebook in opinions that provided no insight into the judges’ actual thinking. I’m not sure how or why laconic opinion-writing became a thing in the Texas state court system, but it has to be frustrating to the litigants (or at least the litigants on the losing end of the decision).

One of the three appellate judges on the panel, Justice Tracy Christopher, dissented. Unlike her peers, she actually wrote an opinion explaining her thinking. The entirety of her dissent:

I respectfully dissent from these denials of mandamus and I urge the Texas Supreme Court to review these cases. Federal law grants Facebook immunity from suits such as these. See 47 U.S.C. § 230. Because Facebook has immunity, these suits have no basis in law, and dismissal under Texas Rule of Procedure 91a is proper.

The Real Parties in Interest urge our court to adopt a construction of Section 230 that has been adopted by only a few courts. The vast majority of the courts reviewing this law have adopted the arguments made by Facebook. The artful pleading by the Real Parties in Interest should not prevail over the statute.

Fewer cases discuss the 2018 amendments to Section 230 known as the Fight Online Sex Trafficking Act of 2017 (“FOSTA”). However, this exception to immunity—on its face—does not apply to a civil action in state court.

Because Facebook has federal statutory immunity from these suits, I respectfully dissent

Now, that’s an opinion. It may be short, but it’s entirely clear and legally correct. Unfortunately, it didn’t sway the other two judges on the appellate panel.

I could see Facebook appealing to the Texas Supreme Court, and it will be interesting to see if they listen to Justice Christopher’s recommendation.

This litigation resembles the M.L. v. Craigslist case, where the trial court also deferred to dubious allegations in the complaint when adjudicating the motion to dismiss; whereas the facts would get more rigorous scrutiny in response to a summary judgment motion. Thus, like the ML case, this case could provide another data point in support of a litigator’s decision to defer Section 230 to an early summary judgment motion rather than spending the time and money on a motion to dismiss. FWIW, I’m not a litigator by training, but I think Facebook’s Section 230 motion to dismiss was the right move in this case–and I would have made the same decision–given the defense-favorable Section 230 precedents in Texas state court.

Finally, as I mentioned in my prior blog post, I cannot ignore the irony that Facebook can’t exit a sex trafficking lawsuit even though Facebook supported FOSTA–a move that was ill-considered at the time and made FOSTA’s passage inevitable, but also a move ensuring that Facebook would need to litigate against sex trafficking victims in court. (However, a reminder that this isn’t a FOSTA case).

Case citation: In re Facebook Inc., 2020 WL 2037193 (Tex. Ct. App. April 28, 2020)