Justice Thomas Fires a Shot Across Facebook’s Bow

The U.S. Supreme Court declined to take up the case of Jane Doe v. Facebook, No. 21-459. Justice Thomas agreed, but only for the time being.

In 2012, an adult, male sexual predator used Facebook to lure 15-year-old Jane Doe to a meeting, shortly after which she was repeatedly raped, beaten, and trafficked for sex.Doe eventually escaped and sued Facebook in Texas state court, alleging that Facebook had violated Texas’ anti-sex trafficking statute and committed various common-law offenses. Facebook petitioned the Texas Supreme Court for a writ of mandamus dismissing Doe’s suit. The court held that a provision of the Communications Decency Act known as §230 bars Doe’s common-law claims, but not her statutory sex-trafficking claim.

The breadth of Section 230 is a matter of great controversy. Justice Thomas believes the Court should review the “expansive” interpretation prevailing in lower courts. Unfortunately for Jane Doe, the time is not yet ripe for the U.S. Supreme Court to take this particular case.

The Court’s jurisdiction to review state court cases is more limited than its jurisdiction to review cases from the lower federal courts. Congress has limited it to review final judgments. This case is not yet final because part of Jane Doe’s suit can proceed.

But in an appropriate case, we can expect Justice Thomas to be ready to rein in the expansive interpretation.

Here, the Texas Supreme Court afforded publisher immunity even though Facebook allegedly “knows its system facilitates human traffickers in identifying and cultivating victims,” but has nonetheless “failed to take any reasonable steps to mitigate the use of Facebook by human traffickers” because doing so would cost the company users—and the advertising revenue those users generate….  It is hard to see why the protection §230(c)(1) grants publishers against being held strictly liable for third parties’ content should protect Facebook from liability for its own “acts and omissions.”

In other orders list [in]action, the Court turned down the Bill Cosby case, Pennsylvania v. Cosby, No. 21-793.

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