FOSTA Is Silencing Speakers; DC Court of Appeals Can Stop It
Written by Emma Llansó
CDT filed an amicus brief yesterday in Woodhull v. US, the case that brings a constitutional challenge to the controversial Allowing States and Victims to Fight Online Sex Trafficking Act (FOSTA). FOSTA, signed into law in April 2018, made significant changes to federal criminal law and amended Section 230, the law that shields online intermediaries from liability for user-generated content. These changes jeopardize constitutionally protected speech about sex and sexuality and greatly increase the risk of censorship of lawful speech by online intermediaries. As CDT and many others had warned, a number of forums and websites hosting lawful speech have already shut themselves down in response to the law, fearing the increased risk of litigation that FOSTA creates.
Woodhull Freedom Foundation, Human Rights Watch, the Internet Archive, and two individuals, Eric Koszyk and Alex Andrews, filed a lawsuit challenging FOSTA on First Amendment grounds. (The plaintiffs are represented by the Electronic Frontier Foundation, Davis Wright Tremaine, Walters Law Group, and Daphne Keller; EFF has a full case summary here). The D.C. district court dismissed the initial claim on the grounds that the plaintiffs lacked standing to bring the case because they had not yet been prosecuted under the law. The district court took at face value federal prosecutors’ statements that they would not bring charges against any of the plaintiffs and failed to address the fact that FOSTA also enables state criminal prosecution and civil litigation, which exert their own chilling effects that federal prosecutors cannot merely wave away.
The plaintiffs are appealing this dismissal to the Court of Appeals for the D.C. Circuit, emphasizing the chilling effect the law has already had on protected speech and asking the appellate court to grant a preliminary injunction against FOSTA. In our amicus brief, CDT situates FOSTA in the context of the many federal and state attempts to censor online speech that have preceded it. The same constitutional flaws of laws such as the Communications Decency Act (CDA), the Child Online Protection Act, and various state attempts to create liability for websites that host third-party content, including advertising, are pervasive in FOSTA. Like these other failed attempts, FOSTA should be struck down.
A Brief History of Online Speech Regulation
FOSTA is far from the first time that Congress has passed an internet-censorship law that broadly burdens speech relating to sex. In 1996, it passed the Communications Decency Act, which (among many things) prohibited website operators from “knowingly transmitting” “indecent” material to minors. This law applied a vague restriction on speech not to the speakers or creators of that material, but to the website operators and other intermediaries that enabled online access to such content. The U.S. Supreme Court struck down the bulk of the Communications Decency Act in Reno v. ACLU in 1997, given the chilling effect it had on individuals’ speech and the incentives it created for website operators to censor broadly. While offline booksellers, magazine stands, and video stores could be required to restrict access to pornography by people under the age of 18, online intermediaries were dealing with anonymous users and volumes of content, the scale of which made pre-publication review impossible. To ensure that the internet remained a place of “vast democratic fora,” the Court invalidated the law.
Congress tried again in 1998, with the Child Online Protection Act, which made it a crime to enable online access to material “harmful to minors.” But again, the law swept too broadly, providing a vague definition for what speech was actually illegal, and placed intermediaries in the position of gatekeepers. The Supreme Court enjoined the law and, after ten years of litigation, it was effectively void. States have also sought to hold intermediaries liable for third-party content, including Pennsylvania’s Internet Child Pornography Act, which required ISPs to block entire domains based on informal notices from the state Attorney General. CDT brought a successful First Amendment challenge to this law in 2004, arguing that the law was inherently overbroad and unavoidably suppressed protected speech. In 2012, there was a spate of failed state-level attempts at creating liability for hosting online classified ads in Washington, New Jersey, and Tennessee. Each of these state laws was struck down by their highest courts for being unconstitutionally vague and overbroad, and for violating Section 230.
Section 230 (called the Internet Freedom and Family Empowerment Act) was passed in 1996 as part of the Communications Decency Act and is one of the few elements of the CDA that survived the Reno v. ACLU decision. The law is motivated by First Amendment principles, providing a statutory backstop to the editorial rights that website operators have to decide what material does and does not appear on their sites. It also provides a shield against liability for internet intermediaries, including domain name providers, search engines, email services, web hosts, and operators of websites and social media services, for the third-party content that they host, link to, or transmit. This idea of limited liability for intermediaries has been a crucial concept to the development of the global internet and to the ability of individuals around the world to use the internet to express themselves and access information, as human rights experts have noted.
Challenges Moving Forward
Questions over the role of intermediaries and efforts to control speech online are particularly salient today. With policy debates swirling around such disparate challenges of combatting disinformation, stopping sex trafficking, fighting terrorism, reducing gun violence, and more, policymakers and the public are looking anew at the roles and responsibilities of different intermediaries in our information environment. As the internet has grown, so too have the capabilities and reach of powerful platforms, and CDT has led and joined in numerous efforts calling for intermediaries to adopt policies and practices that will advance users’ fundamental rights.
But there is no question that these debates, whether in Congress, the European Parliament, or any other policy venue, should take place with a full understanding of the global history of online censorship and the noted pitfalls of vague, broad obligations on intermediaries to act as content police. FOSTA is a textbook example of such an obligation and has already had a significant chilling effect on constitutionally protected speech. We urge the court to reverse the lower court’s dismissal of the case and to enjoin this dangerous law.
CDT is grateful to our pro bono counsel, Brian Willen and Lauren White of Wilson Sonsini Goodrich & Rosati, for their work on this brief.