Guest Article: Paul Davis on His Lawsuit Against Facebook
Texas Republican lawmakers left huge loophole in anti-censorship bill
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On Friday, a Tarrant County Republican judge, Josh Burgess, dismissed Chad Prather’s censorship lawsuit against Facebook on the grounds that Facebook’s user agreement only allows users to sue the platform in California. The decision exposed a gaping loophole in HB 20, the new Texas anti-censorship law that strongly suggests the law’s passage was nothing more than another PR stunt by Governor Greg Abbott and his RINO allies in the Texas legislature designed to fool conservative voters.
Editors note: For those unaware, HB20 was an anti-censorship bill that was celebrated by Republicans for supposedly protecting Texans from being censored on social media.
Blaze TV host and former Texas gubernatorial candidate Chad Prather hired me to bust him out of “Facebook jail” after the platform suspended his account for the week leading up to the March 1 primary election. HB 20 had gone into effect on December 2, 2021, and I was ecstatic to be the first lawyer in Texas to test drive the new law. Little did I know, like the exploding gas tank in a 1970s Ford Pinto, HB 20 had a fatal defect.
At first, HB 20 seemed to perform beautifully. I filed the Prather v. Facebook lawsuit on February 24 and requested a temporary restraining order directing Facebook to immediately lift all restrictions from Prather’s account. I was in court arguing against Facebook’s overpriced lawyers the very next day and was thrilled when the court issued the restraining order. It felt great to win the first round and send the social media giant back to its corner with a bloody nose and a black eye.
However, the following week, Facebook filed a motion to dismiss the case on the grounds that the Facebook user agreement contains a “forum selection clause” requiring all lawsuits to be brought in California. Under Texas law, the only applicable exception to enforcement of forum selection clauses is if enforcement of the clause would violate “strong Texas public policy.”
To me, the strong Texas public policy was obvious. As I argued in my response brief, HB 20 was enacted to protect the fundamental right of Texans to free speech in the new public square of social media. If Facebook and other platforms could contractually require all lawsuits under HB 20 to be brought before a leftist Democrat judge in Silicon Valley, then the law would be completely useless. It is no secret that Democrats generally support social media censorship since it prevents conservatives from spreading what they view to be “dangerous misinformation.” This is evidenced by the fact HB 20 was passed along a straight party-line vote without the support of a single Democrat (and also by the fact that Kel Seliger voted against it).
There was only one problem. Texas Supreme Court precedent makes it very difficult to prove a public policy exception to enforcement of forum selection clauses where the Texas Legislature did not specifically state in the law that the forum must be in Texas. As I searched for such a provision in the text of HB 20, I was shocked to find it was nowhere to be found.
The Texas Legislature has a whole team of lawyers known as legislative counsel, or “ledge counsel” for short, that draft and review these bills. It is their entire job to prevent defects of this nature. It is not plausible that a team of lawyers could have missed the fact that the user agreements for social media platforms dictate the venue for lawsuits in California because this would render the entire bill virtually useless—unless that was the intent.
Thus, it appears Greg Abbott and his RINO allies in the Texas Legislature have pulled another fast one on conservatives. When the bill was first introduced, Abbott held a press conference with Senator Bryan Hughes stating, “Big tech’s effort to silence conservative viewpoints is un-American, un-Texan, and it is unacceptable—and pretty soon, it’s gonna be against the law in the state of Texas.” Recently, it was revealed that, while Abbott was publicly decrying social media censorship, he was working with Facebook to bring a facility to Texas.
Shame on me for believing they actually wanted to do something for Texas conservatives. Like Abbott’s utterly toothless executive order “banning” employer vaccine mandates, once again, Texas conservatives have been handed a huge nothingburger, a vegan-patty monstrosity cooked up by the Austin swamp and advertised on the menu as wagyu beef.
That’s not to say HB 20 is of no use at all to Texans wanting to sue social media platforms for censorship. Judge Burgess would have been entirely within his discretion to hold Texas public policy prevents enforcement of the forum selection clause. Unfortunately, Judge Burgess, appointed by Abbott to fill a vacancy in the 352nd judicial district, made his allegiance to the Austin establishment clear when he indicated during the April 21 hearing that the “conservative position” should be “freedom of contract.” In other words, Judge Burgess believes Facebook’s right to force Texans to sue it in California is more important than the interest of Texas in protecting the fundamental right of its citizens to free speech.
It will take a strong conservative judge and a strong conservative court of appeals to set aside forum selection clauses to allow Texans to take advantage of HB 20, which means everyone living in a major metropolitan area is probably out of luck. The Texas Legislature could have avoided this issue with one simple line added to the bill: “Exclusive venue for lawsuits brought under this statute shall be in the state of Texas.” It strains belief that no one thought to add such a line. We conservatives must call out this smoke and mirrors approach to legislation and hold the feet of Abbott and Republican legislators to the fire until this loophole is closed. Also, Judge Josh Burgess must not be elected to a second term.
Editors Note: This is a guest article from Texas patriot, Paul Davis. You can find more information on him and the great work he does at the links below:
Mr. Davis, thank you for shedding light on 'exclusive venue' legalese. I don't think I've run across a TOS (website terms/conditions) that omits that simple requirement. Does seem odd that the ledge counsel happened to miss the loophole. If the omission was meant to be a feature of HB20 that means 'housecleaning' goes beyond one election cycle.