SESTA Would Undermine Free Speech Online

Written by Emma Llansó

Today, a group of Senators led by Senators Portman and McCaskill introduced a bill that would radically change the way that U.S. law protects freedom of speech online. The bill, Stop Enabling Sex Traffickers Act of 2017 (SESTA), would amend Section 230 of the Communications Decency Act, as well as the federal criminal code, creating substantial new risks for any host of user-generated content online. While the senators are motivated by a commendable dedication to fighting human trafficking, the bill would undermine core legal protections that serve as the foundation for free expression and access to information online.

We urge the Senate to reject this bill’s flawed approach [our joint letter to Mitch McConnell & Chuck Schumer can be found here].

The Importance of Intermediary Protections

Section 230 is the law that ensures that web hosts, social media networks, domain name providers, search engines, website operators, access providers, and others who facilitate online expression are not held liable for the content of their users’ speech. This law is as important as the First Amendment to protecting individuals’ ability to speak and to access information online.

Without Section 230’s protections, intermediaries would face strong incentives to block, filter, or take down speech that is questionable or controversial, rather than risk potential fines or criminal penalties. Laws that hold intermediaries legally responsible for content authored by their users create pressures for those intermediaries to more aggressively monitor their users and act as gatekeepers of their speech.

New Liability Risks for Hosts of User-Generated Content

SESTA would make several fundamental changes to the existing framework limiting liability for internet intermediaries. It replicates many of the approaches in Representative Wagner’s “Allow States and Victims to Fight Online Sex Trafficking Act” (HR 1865), introduced in April, and would create significant risk of federal and state criminal and civil liability for hosts of user-generated content.

Currently, Section 230 preempts any inconsistent state law – that is, any state law that would assign publisher liability to hosts of third-party speech. This preemption is crucial for ensuring a stable and consistent application of domestic law to internet intermediaries who necessarily operate on a national (indeed, international) basis.

SESTA would shred this legal certainty by creating an exception to the state-law preemption in Section 230 for any state criminal prosecution or civil enforcement action targeting activity that violates federal trafficking law. This would expose all website operators, social media networks, video-hosting platforms, blogging sites, and other hosts of third-party content to potential liability under a patchwork of state criminal and civil laws. If SESTA were enacted, some states would likely pass laws creating new state-level criminal and civil liabilities for intermediaries, creating further complexity in the regulatory environment for internet intermediaries operating nationwide.

We have already seen this dynamic play out, with several states enacting their own criminal trafficking laws targeting hosts of third-party content. However, each of these laws (in Washington, Tennessee, and New Jersey) were struck down by the courts not only for being inconsistent with Section 230, but also for violating the First Amendment. These state efforts to create criminal hosting liability were deemed overbroad, vague, and too burdensome on individuals’ ability to post and access First Amendment-protected speech. These constitutional standards are the same ones that SESTA and follow-on state bills will also have to face.

SESTA would also create new liability risks under federal statutes, by creating a more expansive definition of “participating in a trafficking venture” under 18 U.S.C. § 1591 and by enabling civil litigants to bring claims for damages related to trafficking against website operators. These provisions aim to expand the potential causes of action against website operators who host advertisements for commercial sex.

One of the key problems with this bill, however, is that it creates potential liability for a broad and dynamic range of intermediaries. Content that is an advertisement for commercial sex can appear on any social media platform, dating site, forum, or blog, and any of these intermediaries who knowingly host third-party speech (i.e., all hosts of third-party content) might be liable for engaging in conduct “that assists, supports, or facilitates the violation of” federal anti-trafficking laws.

Currently, Section 230 enables website operators to seek dismissal of civil suits at an early stage of litigation, reducing the threat of litigation and limiting their exposure to lengthy and costly legal battles. With these new sources of liability, SESTA’s passage would mean intermediaries would likely face many more lawsuits. And even if a website operator were successful in defending against a private individual’s claim for damages relating to trafficking, the expense of mounting such a defense could be enough to drive an operator out of business. Due to the expense (in time, money, and reputation) of even successfully defending a lawsuit, many intermediaries would face the choice of risking potentially bankrupting lawsuits, or erring in favor of taking down challenged speech. SESTA would create an environment for speech that is highly vulnerable to a heckler’s veto: anyone who disagrees with someone else’s post, especially if that post discusses sexual subject matter, could report it to the host as potentially related to sex trafficking.

Significant censorship is the inevitable outcome of this bill.

Controversial speech is perpetually in the crosshairs of both government and private individuals’ interest in censorship. It is often far easier to pressure intermediaries into serving as online censors with the threat of litigation than it is to find an individual speaker and hold her accountable. This puts intermediaries in the position of a judge, determining what speech does and doesn’t violate the law. Intermediaries are not well equipped to do this, and as a result, intermediaries will err on the side of taking speech down, rather than risk a lawsuit or criminal charges for making the wrong call. Significant censorship is the inevitable outcome of this bill.

And perhaps worst of all, the legislation is likely to have little effect on the serious problem of sex-trafficking. SESTA will not limit the availability of advertisements for sex-trafficking online, as traffickers will be able to find entities operating outside of U.S. jurisdiction to host their advertisements.

Overbroad, Ineffective, and Speech Chilling

SESTA is overbroad, ineffective, and will chill substantial amounts of constitutionally protected speech. SESTA would increase operators’ incentives to censor even constitutionally protected speech and would discourage them from providing open fora for dialogue and exchange. SESTA would constrain individuals’ ability to access information online and to find platforms for their speech. At best, they will turn to providers outside of the U.S., who may operate in jurisdictions with lower standards for the protection of freedom of expression than the U.S. First Amendment. We urge the Senate to reject this bill’s flawed approach.

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