Texas Supreme Court Completely Confuses Section 230, Makes A Total Mess Of FOSTA

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 human trafficking.

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 way.

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?

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Comments on “Texas Supreme Court Completely Confuses Section 230, Makes A Total Mess Of FOSTA”

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This comment has been deemed insightful by the community.
That One Guy (profile) says:

'The law and legal precedent is super clear, but I dunno...'

I’m not sure which is worse or more likely honestly, that the judge had already determined the result they wanted and was working backwards from there or that they are that easy to trick, because when the law is really clear and past rulings have likewise made precedent really clear to buy the argument that things are ambiguous is really not a good look for the judge.

Given Facebook’s support of FOSTA I’d say the best result from this would be them winning the case but having to pay through the nose to do so so as to avoid setting precedent that will result in them being dragged through court on a regular basis like this, as it seems only fitting that they go through just a wee bit of suffering for their past actions.

This comment has been deemed insightful by the community.
CypherDragon (profile) says:

Re: 'The law and legal precedent is super clear, but I dunno...'

It’s in Texas, against something "conservatives" have stated is Public Enemy #1.5 (right behind anything from "Commiefornia"). You expected any kind of different result?

The TX SC already knew exactly what result they wanted – which is to punish FB for being so…sooo…"liberal," and they will make up anything they needed to do it.

ECA (profile) says:

Re: 'The law and legal precedent is super clear, but I dunno...'

Love the idea that the Old Corps, that are peddling Info to our Gov.
that pay little to nothing in taxes, cause they use Stocks as payment.
Are So jealous of the advances of these NEW companies/corps, that are Making tons of money, in ways they The OLD ones could have tried, and done.
A Judge that cant take the time to READ the sections of the laws he is supposed to be debating.
The question should come down to, IF a person in COMPANY A, did a bad thing, Should they file against the Company also?
NOT if it wasnt a person in an upper position of the company, and ON company property.
This is NOT a Grocery store where you can drop a Piece of fruit and Slip and Fall on Purpose.

This comment has been deemed insightful by the community.
Anonymous Coward says:

The Constitution, however, entrusts to Congress, not the courts, the responsibility to decide whether and how to modernize outdated statutes.

So, I guess in Judge Blacklock’s court, the All-writs act and third-party disclosure of electronic documents needs to go through Congress for modernization before they’ll be accepted? What about defamation on radio and television, let alone social media? No new laws there, are there? Must be ambiguous and so should go back to Congress.

Sure he would. Sure.

CommentUser says:

The main point of Justice Blacklock’s opinion for the Texas Supreme Court was that:

  • The whole of Section 230(e)(5) dealing with Sex Trafficking laws was added by the lawmakers with the reason:

    "(1) section 230 of the Communications Act of 1934 (47 U.S.C. 230; commonly known as the ‘‘Communications Decency Act of 1996’’) was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims; (2) websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion; and (3) clarification of such section is warranted to ensure that such section does not provide such protection to such
    websites." FOSTA PUBLIC LAW 115–164—APR. 11, 2018

  • That 230(e)(5) applied to all of 230 with the exception of subsection (c)(2)(A) – so it would apply to (c)(1) [for the purposes of 230(e)(5) they would be considered liable as a publisher or speaker] and (c)(2)(B). Writ Of Mandamus – Supreme Court Of Texas, No. 20-0434

  • "The relevant language in section [TEX. CIV. PRAC. & REM. CODE §] 98.002(a) is borrowed almost verbatim from the Texas statute criminalizing the same conduct. See TEX. PENAL CODE § 20A.02(a). The text of that law itself closely resembles a federal statute. See 18 U.S.C. § 1591(a)." Writ Of Mandamus – Supreme Court Of Texas, No. 20-0434

  • "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." Writ Of Mandamus – Supreme Court Of Texas, No. 20-0434

  • "the Ninth Circuit has held that defendants lose their CDA immunity if they go beyond acting as ‘passive transmitter[s] of information provided by others.’ Roommates.Com, 521 F.3d at 1166. A defendant that operates an internet platform ‘in a manner that contributes to,’ or is otherwise ‘directly involved in,’ ‘the alleged illegality’ of third parties’ communication on its platform is ‘not immune.’ 521 F.3d at 1166. A defendant that operates an internet platform ‘in a manner that contributes to,’ or is otherwise ‘directly involved in,’ ‘the alleged illegality’ of third parties’ communication on its platform is ‘not immune.’ Id. at 1169." Writ Of Mandamus – Supreme Court Of Texas, No. 20-0434

  • "section 98.002 claims also allege overt acts by Facebook encouraging the use of its platforms for sex trafficking. For instance, the petitions state that Facebook … ‘uses the detailed information it collects and buys on its users to direct users to persons they likely want to meet’ and, ‘[i]n doing so, . . . facilitates human trafficking by identifying potential targets, like [Plaintiffs], and connecting traffickers with those individuals.’" Writ Of Mandamus – Supreme Court Of Texas, No. 20-0434

Even if a person were to believe that the Texas Supreme Court erred in applying TEX. CIV. PRAC. & REM. CODE § 98.002(a), since there was an almost verbatim criminal code TEX. PENAL CODE § 20A.02(a), both of which would constitute a violation of section 1591 of title 18, to FOSTA, within the intent of that law to apply to the whole of 230, whether civil or criminal (which the court agreed that it did), the practical effect would still be the same. If it had failed under TEX. CIV. PRAC. & REM. CODE § 98.002(a), they could have refiled the case under TEX. PENAL CODE § 20A.02(a) which would have been explicitly covered under 230(e)(5)(B).

More importantly, the Texas Supreme Court actually acknowledged, in so many words rather implicitly, that the Facebook system that connects traffickers with individuals without any criminal checks for sex trafficking meets the exact same criteria for them to be content creators in the same way that Roommates.com were seen as content creators because they required people to fill in a form that Roommates.com created (and they used the form as brokers and facilitated an illegal activity under the Fair Housing Act). Facebook would have fallen outside of all of section 230(c) – really outside of 230 immunity all together for there facilitation action – since they then became the content creator for that tool and were responsible for its use, damage, and criminal facilitations (did not provide any background checks that the law would have required before facilitation). The questions and answers on the Roommates.com form were "more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information… [each page was] a collaborative effort between [Roommates.com] and the subscriber." "Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1167 (9th Cir. 2008)"

In summary, even if you believe that the Texas Supreme Court was wrong in its analysis of FOSTA, Facebook would have lost section 230 immunity by virtue of their own content creation within their platform that actually brought them to take an active action in facilitation that would hold them liable (similarly to the way Roommates.com was found to have facilitated under the Fair Housing Act).

Beyond that, even if there was a procedural hoop if FOSTA had been recognized as Facebook had argued, then it appears the case could just be filed again using 230(e)(5)(b) and TEX. PENAL CODE § 20A.02(a).

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