625 S.W.3d 80
Tex.2021Background
- Three separate Texas lawsuits by minors allege they were recruited and sex‑trafficked after contact on Facebook or Instagram; plaintiffs pleaded negligence, negligent undertaking, gross negligence, products‑liability, and a statutory claim under Tex. Civ. Prac. & Rem. Code § 98.002.
- Plaintiffs allege Facebook (owner of Instagram) failed to warn, verify ages, restrict adults contacting minors, flag suspicious messages, remove traffickers, or otherwise prevent grooming and advertising of victims.
- Facebook moved to dismiss under 47 U.S.C. § 230(c)(1) (CDA) arguing state common‑law and statutory claims are preempted; district courts denied those motions in part; Facebook sought mandamus from the Texas Supreme Court.
- The court treated plaintiffs’ factual allegations as true (Rule 91a/mandamus posture) and reviewed de novo whether § 230 bars the pleaded claims.
- Holding: the court dismissed plaintiffs’ common‑law claims (negligence, negligent undertaking, gross negligence, products liability) as preempted by § 230, but allowed the statutory human‑trafficking claims under Tex. Civ. Prac. & Rem. Code § 98.002 to proceed, reasoning § 230 does not shield a website from liability for its own affirmative participation in trafficking (and FOSTA supports that view).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 230 bars negligence, negligent‑undertaking, gross‑negligence claims premised on Facebook’s failure to warn/protect users | Claims are based on Facebook’s own omissions and product design, not on publishing third‑party content | § 230 preempts suits that would treat Facebook as the publisher/speaker of third‑party content; such claims are barred | Barred — common‑law claims dismissed under § 230 (mandamus conditionally granted as to those claims) |
| Whether § 230 bars products‑liability claims alleging defective design/warnings that allowed trafficking | Products theory alleges failure to warn/design caused trafficking; not a publisher theory | § 230 bars claims that hinge on third‑party content transmission and editorial decisions | Barred — products‑liability claims dismissed (except one district court had dismissed on separate ground) |
| Whether § 230 bars civil statutory claims under Tex. Civ. Prac. & Rem. Code § 98.002 (benefitting from participation in trafficking) | § 98.002 alleges Facebook affirmatively facilitated and profited from trafficking and therefore is not shielded by § 230 | § 230 preempts analogous trafficking claims and provides immunity | Not barred — § 98.002 claims may proceed; court reasons statute targets affirmative participation and FOSTA supports that construction |
| Whether mandamus is appropriate to obtain dismissal | Plaintiffs: mandamus not warranted to disturb trial court; statutory claims should survive | Facebook: mandamus appropriate because § 230 provides immunity from suit and denial would impair that right | Mixed — mandamus denied in part and conditionally granted in part (common‑law claims must be dismissed; statutory claims may proceed) |
Key Cases Cited
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir.) (foundation for broad § 230 immunity treating websites as publishers)
- Fair Hous. Council v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir.) (distinguishes passive hosting from affirmative involvement; § 230 not a shield for a site that contributes to illegality)
- Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir.) (applies § 230 to bar claims alleging failure to implement measures to prevent user‑to‑user harm)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir.) (explains § 230’s protection for editorial decisions and content‑policing choices)
- Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir.) (interpreted § 230 to bar trafficking‑related claims; prompted congressional response via FOSTA)
- Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13 (U.S.) (statement respecting denial of certiorari highlighting alternative textual reading of § 230)
- Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir.) (§ 230 confers immunity from suit, not just a defense to liability)