HOUSTON – In an opinion issued Tuesday, the majority of a three-judge panel from the 14th Court of Appeals in Texas denied Facebook’s request for a writ of mandamus instructing judges from two trials courts to overturn their earlier rulings in a lawsuit that seeks to hold the social media giant liable for “permit(ing) sex traffickers unfettered access to the most vulnerable members of our society,” as the plaintiff put it in her original complaint, filed back in October, 2018.

Two lower courts in Texas, the 334th and 151st district courts in Harris County, Texas, previously denied Facebook’s motions to dismiss the claims, leading Facebook to petition the appellate court for the writs of mandamus.

In its opinion issued Tuesday, the majority (comprised of Justice Charles A. Spain and Justice Margaret Poissant) stated that “Facebook has not established that it is entitled to mandamus relief” and lifted stays the court issued in November, allowing the trial courts to proceed with hearing the case.

In her dissenting opinion, Justice Tracey Christopher noted that in denying Facebook the requested writs, the 14th Court of Appeals was breaking with the rulings of most other courts that have heard similar cases.

“I respectfully dissent from these denials of mandamus and I urge the Texas Supreme Court to review these cases,” Christopher wrote in her dissent.

“Federal law grants Facebook immunity from suits such as these,” Christopher added, citing Section 230 of the Communications Decency Act. “Because Facebook has immunity, these suits have no basis in law, and dismissal under Texas Rule of Procedure 91a is proper.”

Christopher also stated that in opposing Facebook’s request for a writ, the plaintiffs (referred to in these rulings as “the Real Parties in Interest”) “urge our court to adopt a construction of Section 230 that has been adopted by only a few courts.”

While she noted that the “vast majority of the courts reviewing this law have adopted the arguments made by Facebook,” Christopher also acknowledged that “fewer cases discuss the 2018 amendments to Section 230 known as the Fight Online Sex Trafficking Act of 2017 (“FOSTA”),” but added that she doesn’t see anything in FOSTA which makes the statute applicable in the cases at issue in Facebook’s petitions for writs of mandamus.

“This exception to immunity—on its face—does not apply to a civil action in state court,” Christopher asserted in her dissent. “Because Facebook has federal statutory immunity from these suits, I respectfully dissent.”

In comments reported by Texas Lawyer, the Jane Doe plaintiff’s attorney, Annie McAdams, echoed the statements made by some members of Congress who sponsored and/or supported FOSTA, saying that the “Communications Decency Act was never intended to protect big tech companies when they knowingly facilitate unlawful activities,” adding that she knew when she filed the case that she was seeking “groundbreaking developments in the law.”

Many critics of FOSTA (including the Woodhull Freedom Foundation and their co-plaintiffs who are challenging the constitutional FOSTA in an ongoing lawsuit) have argued that the prospect of being prosecuted or sued under FOSTA “chills sexual speech and harms sex workers.”

Should the Jane Doe plaintiff prevail in her case against Facebook, you can bet there will be many other similar lawsuits to file. And while the claims at issue in the case pertain to Facebook’s alleged facilitation of sex trafficking arguably aren’t the same sort of claim about which Woodhull and its co-plaintiffs are concerned, it’s not hard to imagine other potential civil litigants using FOSTA in targeting other websites which allegedly “promote or facilitate the prostitution of another person” in state law claims, should Doe prevail in Texas.

Thumbs down stock photo by Markus Spiske from Pexels