Facebook has again lost its court battle to dismiss lawsuits by three young women who claimed they were sex trafficked on the Facebook or Instagram platforms.

These lawsuits are pushing the legal limits of how social media companies can be held accountable for sex trafficking that occurs on their platforms.

In a 2-1 ruling Tuesday, the 14th Court of Appeals affirmed two trial judges' orders that denied Facebook's motions to dismiss the lawsuits under the Texas Rules of Civil Procedure 91a, which is the Lone Star State's version of the federal 12(b)(6) motion to dismiss for failure to state a claim. The dissenting justice urged the Texas Supreme Court to take up the cases.

Annie McAdams. Courtesy photo

The girls' attorney told Texas Lawyer this is the first time any plaintiffs survived challenges by Facebook under the Communications Decency Act, a federal law that says that interactive computer service providers can't be treated as the publishers or speakers of content on their platforms.

"The Communications Decency Act was never intended to protect big tech companies when they knowingly facilitate unlawful activities," said plaintiffs attorney Annie McAdams, who pledged to fight all the way to the U.S. Supreme Court, if needed. "We knew when we filed this case it was groundbreaking developments in the law."

Immune or not immune?

The plaintiffs in the lawsuit alleged that others sex trafficked them through the Facebook platforms. They claimed that Facebook knows it has a sex trafficking problem but has done nothing to protect children.

Facebook denies the allegations. The company has said that it works with child protection experts, law enforcement and other tech companies to "block and remove exploitative photos and videos, as well as to prevent grooming online." Facebook asks users to report potential human-trafficking content.

Facebook tried arguing that it was immune from the claims under that communications law. The tech giant had argued that being immune meant the plaintiffs, who were teenagers when they alleged the sex trafficking occurred, had failed to state a claim upon which relief can be granted, and the lawsuits should be tossed from court. The two trial judges presiding over the three teenagers' lawsuits rejected that argument.

The social media company appealed, seeking mandamus relief from the 14th Court. But the two-justice majority denied relief.

"Facebook has not established that it is entitled to mandamus relief," the per curiam majority opinion said.

In a dissenting opinion, Justice Tracy Christopher disagreed and wrote that the state's high court should take a look at the cases. The three plaintiffs were asking the 14th Court to interpret the Communications Decency Act in a way that only a few courts have done, she explained, adding that the majority of courts have ruled in favor of Facebook's arguments.

The dissent added that the Communications Decency Act was amended in 2017 to add an exception to immunity. However, she wrote, the exception wouldn't apply in a civil action in a state court.

"Federal law grants Facebook immunity from suits such as these," Christopher wrote. "Because Facebook has immunity, these suits have no basis in law, and dismissal under Texas Rule of Procedure 91a is proper."

Hunton Andrews Kurth partners Scott Brister and Kelly Sandill both declined to comment. No one in the Facebook press office immediately returned an email seeking comment.

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