Ever since the Communications Decency Act was born, Big Tech’s future monopolists began using Section 230 as their sword and shield. It’s fitting that sex trafficking lawsuits put one of the biggest legal dents in Section 230 so far. 

Facebook can’t be sued for what people say on its platform, but it can be for letting sex traffickers get away with using the site as a recruiting tool, the Texas Supreme Court ruled Friday, opening the door to more lawsuits and setting up a possible appeal to the U.S. Supreme Court that could erode a key legal protection for social media companies.

Here’s a key quote.

“Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing,” Justice Jimmy Blacklock wrote for the majority.

Section 230, in other words, isn’t a blank check.

The obvious thing for Facebook to do is to appeal, but that could very well be a trap.

Facebook can appeal the ruling to the U.S. Supreme Court, but that would give the court the chance to issue a ruling that goes further than the child trafficking exceptions to Section 230, potentially imperiling a key legal shield for the tech industry. “If you open it up, they could narrow the whole scope of Section 230,” said Jeff Kosseff, a cybersecurity law professor at the United States Naval Academy and the author of a book on the history of the law. He noted that Justice Clarence Thomas has said he believes Section 230 is too broadly interpreted in favor of the tech companies.

Exactly. Facebook has to balance whether it’s more worried about being sued by sex trafficking victims or conservatives. The former is financially damaging, but Facebook has deep pockets. The precedents for the latter may be far more dangerous than the former.

Facebook’s Section 230 shield takes a hit either way. It’s now a balance of liabilities.