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Free Expression

Compromise on Attorney General Nomination Contains Threat to Free Speech Online

Today, the Senate will vote on an amendment to the Justice for Victims of Trafficking Act, which could jeopardize the hosting of wholly lawful speech online.  Amendment 273, sponsored by Senator Mark Kirk, would expand existing federal anti-trafficking law to allow prosecution of online advertising sites and social media platforms that traffickers use to post ads. The amendment is part of the political bargain to move forward the confirmation of Loretta Lynch as Attorney General, and resolve partisan disagreement over federal funding for abortion.

“This amendment would undermine the foundation of free expression online,” said Emma Llansó, Director of CDT’s Free Expression Project. “People rely on web hosts, social media platforms, blogs, and classified ad sites to host their speech.  These intermediaries are willing to do this because existing laws prevent them from being held legally liable for speech authored by someone else.  This amendment would make every content host potentially subject to criminal prosecution.”

“The impact on small businesses would be immense. Having to defend a federal criminal suit, even as a wholly innocent party, would be ruinous to smaller platforms. The mere threat of being prosecuted over user-created content would discourage businesses from creating interactive services. This amendment would stifle innovation in one of the most vibrant sectors of the economy,” Llansó added.

“Senator Kirk’s Amendment would create incentives for content hosts to censor by default, and, perversely, would discourage good-faith screening and filtering of content by host platforms. One wrong decision to leave an ad online could open the door to prosecution for ‘knowing’ hosting of a trafficking ad,” Llansó said. “This amendment is a radical departure from existing protections for free expression online. The Senate should reject this amendment to the Justice for Victims of Trafficking Act,” Llansó concluded.