The social media giant argues if the Texas Supreme Court allows the cases to proceed, it could lead to a 50-state patchwork of laws regulating online service providers.
AUSTIN, Texas (CN) — Facebook urged the Texas Supreme Court on Wednesday to dismiss lawsuits from three women who say they were pulled into the sex trade by pimps who contacted them on the company’s social media platforms.
The world’s largest social media network with 2.8 billion active users, Facebook has vastly expanded its footprint since Mark Zuckerberg started it in 2004 as a way for him and his fellow Harvard students to connect.
Facebook has acquired 78 companies over the past 15 years, including the popular apps Instagram and WhatsApp.
Both Facebook and Instagram are named as defendants in separate lawsuits three Jane Does filed against them in Harris County in 2018 and 2019.
One of the women says in 2012, when she was 15, a man with whom she had mutual Facebook friends reached out to her on the website and she accepted his friend request.
He told her she was “pretty enough to be a model” and promised to help her make enough money modeling to rent her own apartment.
She agreed to let him pick her up after she had an argument with her mom.
“Within hours, Jane Doe was raped, beaten, photographed for Backpage.com, and forced into sex trafficking,” the Does say in a brief with the Texas Supreme Court.
Two trial court judges and a state appeals court refused to dismiss the Does’ claims of negligence, gross negligence, products liability and Texas state law violations.
Facebook petitioned the Texas Supreme Court in May 2020 for dismissals, arguing its immunity against such claims is clearly spelled out in Section 230 of the Communications Decency Act, passed by Congress in 1996.
Section 230 protects online service providers from liability for content published on their platforms by third parties and for regulating content on their sites.
With two of their colleagues recusing themselves from the case, seven of the high court’s justices heard arguments Wednesday and tried to parse out the extent to which Section 230 shields online companies from liability.
Representing Facebook, Allyson Ho with the Dallas office of Gibson, Dunn and Crutcher said the Does are trying to circumvent the plain text of Section 230 by reframing the allegations in terms of Facebook’s conduct rather than the messages pimps sent to the women on the site.
The Does’ counsel, Warren Harris with Bracewell LLP, said, “Facebook is in the business of making connections. That’s what Facebook does. That’s what its website is designed to do and… it makes connections between minors and adults who turn out to be traffickers.”
He said Facebook’s proprietary algorithms that encourage social connections by recommending users “friend” each other on the site is not publisher activity protected by Section 230.
Harris argued Facebook had failed to warn users about sex traffickers who troll its site for vulnerable girls.
The women claim Facebook, which boasts it can target users by “age, gender, locations, interest, and behaviors,” down to as few as 1,300 for advertising purposes, should install filters to stop adults from communicating with minors.
But Ho said the only thing that connects Facebook to the sex trafficking is the messages the pimps sent their victims, and because the Does’ claims are “inextricably intertwined” with this third-party speech, Facebook cannot be held liable under Section 230 as a mere publisher of those messages.
Justice Eva Guzman appeared to buy this argument. “It does seem there’s a link – whether it’s inextricably or not, I’ll let you address,” she told Harris, the Does’ attorney.
Harris said Section 230 does not grant service providers general immunity against all claims derived from third-party content.
“Facebook is the first point of contact between sex traffickers and the children who become their victims,” he said.
Ho warned the justices that if they let the lawsuits proceed, they will be going against precedent set by every federal appeals court and numerous state supreme courts that have shot down similar claims.
Scott Keller, with Baker Botts’ Austin office, made amicus arguments in support of Facebook on behalf of the Washington Legal Foundation, a nonprofit that promotes free-market ideals.
“The plaintiffs’ theories would radically transform the internet by creating a 50-state patchwork of laws, stifle start-ups and innovation and effectively impose a notice and take-down regime for the entire internet,” he said.
Congress, not state civil courts, is the proper venue to address these issues, he cautioned.
Texas filed an amicus brief on behalf of the Does, and Texas Solicitor General Judd Stone presented arguments to the high court Wednesday.
Echoing Harris’ claims, he said Section 230 immunity does not apply to Facebook in these cases because it’s not about the attribution of a third party’s speech to Facebook, nor its filtering of content.
“Plaintiffs neither attribute the words their rapists said to Facebook nor claim Facebook wrongfully removed anything from its platform,” he said.
Justice John Devine, who rarely speaks on the bench, weighed in near the end of the 45-minute hearing as Ho gave closing arguments, asking why she thinks the women’s claims are meritless.
“Are you saying the algorithms created by Facebook did not allow the connection between traffickers and minors?” he asked.
Ho replied the Does had not made any claims about the social media giant’s algorithms in briefs and she was surprised Harris had brought it up in the hearing.
“There’s no dispute that Facebook itself bans this content from its platforms,” she said. “It removes it. It eradicates it. Facebook abhors this content. The issue here is this court enforcing the plain text of Section 230, all of the case law that’s interpreted it and ordering plaintiffs’ claims dismissed.”