Thread by @AriCohn

1/ #SCOTX just issued a Section 230 decision that uses some breathtakingly tortured analysis to achieve a particular outcome.

txcourts.gov/media/1452449/…

The plaintiffs had brought various tort claims against Facebook alleging that it facilitated sex trafficking.

2/ In addition to the negligence/products liability claims, Plaintiffs also brought claims under Texas's trafficking laws, opting not to proceed under federal sex trafficking law, which is not immunized under Section 230.

3/ SCOTX spent some pages bloviating about whether Justice Thomas's interpretation of Section 230 is right, ultimately concluding that they weren't going to follow it and instead agreed that the negligence/products liability claims should be dismissed pursuant to 230. All right.

4/ But then, the twist: the court held that the state sex trafficking claims were *not* preempted by Section 230.

To do so, the court had to read the exceptions to 230 immunity created by FOSTA-SESTA to exempt state civil sex trafficking claims from protection.

5/ Here's the problem: that's not what the law does. The law specifically states that civil claims under the *federal* sex trafficking statute are not immunized under 230.

6/ On its way to ignoring the literal words of the statute, SCOTX decided that Congress didn't really mean what it said, it was just providing a statutory *construction* under which Section 230 should be read.

7/ But that's total nonsense. Congress wasn't just pronouncing an overarching theory of what isn't immunized by Section 230. It literally *named the exact statute* that plaintiffs could avail themselves of. That is NOT a rule of construction! That's a very specific carveout.

8/ And *of course* claims under 1595 would treat defendants as speakers or publishers! That's the entire REASON for (e)(5)(A) in the first place. You wouldn't need the carveout if it wouldn't have fallen under 230 anyway. This is a baffling lack of comprehension of how 230 works.

9/ Justice Blacklock appeals to the "sense of Congress" that 230 isn't meant to immunize sex traffickers. But the text of (e)(5)(A) couldn't possibly be any *less* indeterminate! It literally names the statute under which claims aren't immunized!

10/ I don't think state laws slipped Congress's mind. (e)(5)(B) and (C) both go on to talk about *state law* (for criminal prosecutions)! It is clear that if Congress had intended to exempt state civil claims, it would have. SCOTX is creating ambiguity where there is NONE.

11/ And no ambiguity is created just because a plaintiff's lawyer advanced an argument in court. Lots of wrong understandings are advanced in court, and that's a poor excuse for ignoring the very clear text of a law.

12/ Without a hint of irony, Blacklock concludes that it's for Congress, not courts, to modernize statutes.

But his warped, tortured statutory construction (such as it is) did just that. Congress made a decision to only exclude federal law. It's not up to SCOTX to change that.

I still can't get over "the law is ambiguous because plaintiffs argue that the law doesn't mean what it very clearly says."

Some real barrel-scraping going on here.