Plaintiffs Are Eager to Invoke the Texas Social Media Censorship Law, But Will They Have to Do So in California?

Plaintiffs CAN’T WAIT to sue Internet services using the Texas social media censorship law. Indeed, they are already filing lawsuits despite the pending Supreme Court appeal hanging over the law. But surprise! The plaintiffs may have to sue in California if the law survives Constitutional scrutiny. This change in venue would dampen the plaintiffs’ enthusiasm. Although the plaintiffs should celebrate the opportunities to get out of Texas and enjoy the wonderful tourism in California, plaintiffs will much prefer Texas judges hearing Texans’ censorial gripes.

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The plaintiffs run private Facebook groups. They claimed that Facebook engaged in impermissible viewpoint discrimination against them. They sued Facebook in Northern District of Texas. Facebook sought to relocate the case to Northern District of California per its TOS.

The parties agree that the claim is within the TOS’s scope and the TOS forum selection clause dictates Northern District of California.

Nevertheless, the plaintiffs argued that the law “evidences a strong public policy to protect Texans from wrongful censorship on social media platforms.” However, the law doesn’t dictate Texas venue, and Texas law also favors freedom of parties to set contractual terms to govern their relationship. Checkmate.

The plaintiffs also argued that Facebook’s TOS is unconscionable. The court disagrees:

Meta operates online services across the globe—even Wise Guys consist of users located throughout the United States—so Meta included this forum-selection clause limiting litigation to California, its principal place of business. Courts regularly uphold these kinds of forum-selection clauses

So the TOS forum selection clause is effective, and this case gets sent out of Texas. I wonder if Facebook will be able to invoke anti-SLAPP protection once it gets to a California court?

The court says the Texas legislature didn’t dictate Texas jurisdiction for cases invoking the social media censorship law. The Texas legislature, being the Texas legislature, will almost certainly fill that gap if the law survives the Supreme Court’s review. I hope it doesn’t. As I mentioned yesterday, I submitted an amicus brief to Supreme Court opposing the law. As the maxim goes, everything is bigger in Texas–including the volume of partisan, censorial, and nuisance litigation if the Supreme Court affirms any part of the law.

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The plaintiffs’ names are Wise Guys I and Wise Guys II. The pluralization of the plaintiffs’ names leads to one of the strangest footnotes I’ve seen recently in a court opinion:

I can’t figure out: is the court self-describing itself as the “grammar police,” or is the court anticipating complaints from grammarians disputing the pluralization?

Case citation: Wise Guys I v. Meta Platforms, Inc., 2023 WL 8434452 (N.D. Tex. Dec. 4, 2023)

Also noted: Reaud v. Facebook, Inc., 2023 WL 8455206 (D. Colo. Dec. 6, 2023). The plaintiff sued Facebook in Colorado because he’d “seen 93 ‘unwanted gross and offensive pornographic ads in the SPONSORED section of [his] Facebook page,’ which, he contends, violate Facebook’s community standards.” Facebook successfully invoked its forum selection clause to move the case to Northern District of California. 

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