Critics are getting their chance to attack an anti-online sex trafficking law as unconstitutional in a courtroom showdown that foreshadows a coming debate in Congress over website liability.
The U.S. Court of Appeals for the District of Columbia Circuit is slated to hear arguments Sept. 20 in a dispute over the validity of the Allow States and Victims to Fight Online Sex Trafficking Act. The law, known as FOSTA, holds websites liable, with penalties of fines, imprisonment or both, for intentionally promoting prostitution and knowingly facilitating sex trafficking.
FOSTA was the first law to to amend Section 230 of the Communications Decency Act, the landmark law that shields tech companies from liability for user-posted content. Section 230 has been a flashpoint for members of Congress who want to alter the law as part of a broader look into Big Tech.
The D.C. Circuit case could reveal the types of arguments that Facebook Inc., Alphabet Inc.'s Google, and their supporters could use to fight to keep the broad immunity that websites enjoy under Section 230—even for content that inflames hate, incites violence, or spreads lies. At least four bills making changes to the law are pending on Capitol Hill, Bloomberg Government data show.
“Any new effort to amend Section 230 would potentially face a similar challenge to what we’re arguing here,” according to Lawrence Walters, a First Amendment attorney at Walters Law Group in Longwood, Fla., who is representing the plaintiffs in the FOSTA challenge.
The plaintiffs—an unlikely alliance of human rights advocates, a sex worker activist, and a digital library, among others—say the law violates free speech because it’s too broad and prevents users from posting legitimate content online. The law doesn’t limit potentially prohibited conduct and isn’t narrowly tailored to stop sex trafficking, they say.
“The problem with FOSTA isn’t its intent to get sex trafficking ads off the Internet—but in the blunderbuss way the law was written,” David Greene, civil liberties director at the Electronic Frontier Foundation, who also is counsel for the plaintiffs, said.
Anti-sex trafficking activists, lawmakers, and other supporters of FOSTA say it helps curb online content that promotes sex trafficking and give new tools to prosecutors to hold bad actors accountable. The Department of Justice, which is defending FOSTA, says the plaintiffs have no case because the law doesn’t target their desired internet activities.
Free Speech Challenge
Lawmakers passed FOSTA in 2018 to prevent companies like now-defunct Backpage.com LLC from escaping legal liability for promoting sex trafficking online. Even before its enactment, some tech companies and attorneys worried that the law would stifle free speech by driving websites to remove large amounts of legitimate content just to avoid liability.
The Woodhull Freedom Foundation and Human Rights Watch, which advocate for the health and safety of sex workers; the Internet Archive; a massage therapist; and a sex worker activist sued in the U.S. District Court for the District of Columbia to get the law stricken. The court ruled they lacked standing because they didn’t show that the law harmed them.
The plaintiffs in their appeal are arguing again that the law is unconstitutional, and asking for an injunction to block it. They say they have standing because they had to self-censor valid postings out of fear of prosecution.
Such arguments show “how difficult and delicate it is to start carving out fundamental free speech laws like Section 230,” Carl M. Szabo, vice president and general counsel at e-commerce trade group NetChoice, said.
The D.C. Circuit may only rule on the standing issue and punt the constitutionality question. But any decision may offer guidance on how to craft attacks on similar laws, Eric Goldman, a law professor and co-director of the High Tech Law Institute at Santa Clara University, said. That could provide ammunition for opponents of the bills now being weighed in Congress.
Depending on how the appeals court rules, a decision could be “instructive in determining the bounds of lawmakers’ constitutional authority,” Walters said.
Lawmakers who have introduced bills targeting Big Tech’s immunity under Section 230 say their goal is to protect and expand speech, and to ensure bad actors can’t flourish online.
Rep. Paul A. Gosar (R-Ariz.) introduced legislation (H.R. 4027) that would take away websites’ immunity from liability for removing content they find objectionable. Websites would retain their immunity for removing only illegal content, under the bill.
Republican Missouri Sen. Josh Hawley’s bill, (S. 1914) would strip away immunity from tech companies who can’t prove to the Federal Trade Commission that their content moderation practices are politically neutral. Hawley, like other lawmakers who dismiss concerns that their bills could run afoul of the Constitution, says his legislation would expand speech—not restrict it.
“I’m concerned that these tech companies are violating First Amendment principles,” Hawley said. “They’re monopolies, and they’re trying to narrow and narrow and narrow what kind of speech is available, and that’s bad for our democracy.”
A bill by Louie Gohmert (R-Texas), H.R. 492, aims to deter biased algorithms by holding websites liable for user-posted content that’s not displayed in chronological order or that they delay publishing. The bill doesn’t define bias.
Hawaii Democrat Ed Case’s bill, H.R. 4232, would hold digital marketplaces such as Airbnb Inc. accountable for displaying rental ads that flout state and local regulations barring or restricting short-term rentals. Case, in an email, said the First Amendment doesn’t extend to the online promotion of illegal activity.
Sen. Joseph Manchin (D-W.Va.) is considering legislation to change Section 230 to ensure tech companies work with law enforcement to stop illegal opioid sales. Manchin, whose home state has been hit hard by the opioid crisis, isn’t looking to prevent the exercise of free speech, spokeswoman Katey McCutcheon said.
All of the measures would face arguments—restricting speech, catching too much legitimate content up in their net, or lacking specificity—as those to be aired against FOSTA, attorneys said. Almost any Section 230 carve-out will be subject to protections against content-based speech restrictions, and prohibitions on vagueness and overbreadth, Greene said.
“Even if Section 230 protection is not required by the First Amendment, any law that disadvantages certain speech is subject to First Amendment limitations,” Greene said.
The case is Woodhull Freedom Found. v. USA, D.C. Cir. App., No. 18-5298, oral argument scheduled 9/20/19.