DC Circuit Says FOSTA Is Perfectly Constitutional, Nothing To See Here

Back in January there was some hope that the panel of judges hearing the latest version of the challenge to FOSTA’s constitutionality had recognized the problems with the law. That’s because during oral arguments they seemed to express skepticism about its constitutionality, noting that it appeared to criminalize any efforts to legalize prostitution.

But as we’ve said many, many times, never get too worked up by how oral arguments go, because by the time the actual decision comes down, it may not reflect what was argued live. And that appears to be the case here, where on Friday, the DC Circuit appeals court said that FOSTA appears perfectly constitutional and there’s nothing wrong with the law.

We affirm. Neither Section 2421A of FOSTA nor FOSTA’s amendments to the Trafficking Act are overbroad or unconstitutionally vague. FOSTA’s clarification that Section 230 withholds immunity for violations of federal sex trafficking laws comports with the First Amendment. And the district court correctly dismissed the challenge to Section 230(e)(5)’s retroactive application.

This is a frustrating ruling in all sorts of ways, not the least for handwaving away the very real and very obvious harms to speech that FOSTA has already created, especially among sex workers, and beyond them as well. I mean, the court knows this and even admits that speech was stifled:

In response to FOSTA’s enactment, several online platforms removed content and deleted entire sections of their websites. Woodhull II, 948 F.3d at 368–369. For example, two days after Congress passed the Act, Craigslist eliminated all personal ads, including those in non-sexual categories, and named FOSTA as the reason for doing so. Other websites followed suit, and many blamed the Act’s broad criminal prohibitions and severe penalties. See COYOTE-RI, et al., Amicus Br. A. 15 (“FOSTA changes [liability] in a way that makes sites operated by small organizations * * * much riskier to operate. [The Act] essentially says that if we facilitate the prostitution of another person we’re liable. * * * [T]he problem is that ‘or facilitate’ is ill-defined.”).

The plaintiffs in this case similarly allege that FOSTA has chilled or halted their constitutionally protected speech. Plaintiff Woodhull Freedom Foundation is an advocacy organization that supports the health, safety, and protection of sex workers. Because of the Act, Woodhull has censored its publication of information that might, in its view, be considered to promote or facilitate sex work.

First up, the court looks at whether or not FOSTA’s change to the Trafficking Act, broadening the definition of “participating” in a traffickng venture, is too broad. This was part of what we kept calling out when FOSTA was being debated in Congress. By saying that “assisting” and “facilitating” can violate the law, you’re likely to sweep up all sorts of Constitutionally-protected speech.

You don’t have to go far to see examples of this. Sex workers have found that under FOSTA it’s much more difficult to find a site that will allow them to share information that keeps them safe — as it may be deemed assisting under the law. Sex workers helping keep each other safe by sharing tips and information should pretty clearly be Constitutionally protected.

Yet the panel of judges here says that everyone’s overreacting, because the law doesn’t actually criminalize this:

In sum, reading Section 1591(e)(4)’s definition of “participation in a venture” in light of its context and placement in the statutory scheme, the definition permissibly prohibits aiding and abetting a venture that one knows to be engaged in sex trafficking while knowingly benefiting from that venture. We thus hold that the provision does not have the expansive scope that Woodhull fears, but instead, proscribes only speech that falls within the traditional bounds of aiding-and-abetting liability, which is not a form of speech protected by the First Amendment…

Which is great in theory, but in reality it means that tons of companies refuse to host such speech so as to avoid the risk of a lawsuit (and we’ve seen plenty of frivolous lawsuits using FOSTA already).

The same is true regarding the part of FOSTA that talks about “promote or facilitate.” Again, the court insists there’s nothing to worry about here because, in context, they’re sure that the law means “aid and abet,” which would have much higher knowledge required. Of course, if Congress meant “promote or facilitate” to mean “aid and abet” they, you know, could have written that? But the court insists that’s really what Congress meant:

So when read within its traditional criminal law context, Section 2421A(a)’s prohibition on promoting the prostitution of another person proscribes owning, managing, or operating an online platform with the intent to recruit, solicit, or find a place of business for a sex worker—that is, to aid and abet prostitution…

There’s a lot of this kind of nitpicking, with the court insisting that Congress didn’t actually intend the language to mean what basically every company online has interpreted it to say.

And that seems like a problem.

I mean, in one sense, you could argue that the ruling is actually good for speech, because it’s basically saying “all the things companies are now afraid of because of this law aren’t actually violating the law.” So if companies agree with that and feel safer hosting this kind of speech again, that would be a good result. But… it’s also unlikely to actually play out that way. Because you have to believe that this DC Circuit ruling would be recognized by (1) tort lawyers who have been filing frivolous cases using FOSTA and (2) other circuits.

So, language like this is great… in a vacuum disconnected from reality:

We therefore hold that Section 2421A(a)’s mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution. Instead, it reaches a person’s intent to aid or abet the prostitution of another person. That reading also makes sense in a statute that targets prostitution alongside sex trafficking, and seeks to eradicate the use of online platforms when they contribute to sex work that is compelled by “force, fraud, and coercion[.]”

Will that language make companies comfortable hosting any of that speech? I somehow doubt it.

In many ways this whole ruling is strange like that. It’s basically saying that the very real chilling effects, which the court admits have occurred, were a mistake. But, you know, that’s the whole reason we had a broad Section 230 in the first place, so that websites don’t have to do this mental calculus of “if we host this kind of content, will we have to face a huge lawsuit over it?” And FOSTA directly ruins that for a broad category of speech.

And the court’s response is, effectively, “eh, well, it shouldn’t create any chilling effects, so just stop being afraid.”

Cold comfort.

Those parts above were about the modifications FOSTA made to trafficking law. What about the modifications to Section 230 directly? The panel of judges isn’t at all persuaded that’s a problem, using similar reasoning as above:

Woodhull argues that selective withdrawal of Section 230 immunity only for those who speak on disfavored subjects like the promotion of prostitution and sex trafficking violates the First Amendment. Once again, Woodhull’s argument fails.

To start, FOSTA does not criminalize promoting prostitution broadly. It only punishes aiding or abetting the “prostitution of another person,” which has a much narrower reach…

Then the court says (falsely) that the changes to 230 were only a clarification. Section 230 has always exempted federal criminal law, and the court says that here it’s just making it clear that also includes federal sex trafficking law:

Congress was explicit in FOSTA that Section 230’s immunity provision “was never intended to provide legal protection” to websites that unlawfully promote prostitution or assist traffickers, and accordingly determined that “clarification * * * [wa]s warranted to ensure that such section does not provide such protection to such websites.” 47 U.S.C. § 230 note. Congress amended Section 230 in response to the many court decisions immunizing websites hosting unlawful speech in a manner that was deemed to be contrary to Congress’s original design. See Woodhull II, 948 F.3d at 367– 368 (explaining that courts frequently held that Section 230 prevented liability for violations of federal law). So all FOSTA does is clarify and reinforce the prior exclusion of immunity within the specific context of sex trafficking, and explain that the limit on immunity extends to civil liability as well.

But… that’s wrong. 230 exempts federal criminal law. But not civil law. The examples given of “many court decisions immunizing websites hosting unlawful speech” are civil cases. And that’s important for a variety of reasons, including the different standards involved. And, again, we know this because we’re now seeing these frivolous civil cases being brought under FOSTA.

Anyway, this is an unfortunate result. It’s possible Woodhull will ask the Supreme Court to weigh in, and honestly under SCOTUS’ recent 303 Creative ruling, it seems pretty clear that Woodhull should win. But, the risk with that is that the Conservative wing of the Court seems a lot less likely to care about the 1st Amendment rights of sex workers as compared to a religious Christian woman pretending to want to start a business making wedding websites.

But, of course, the whole point of the 1st Amendment is that it’s supposed to protect everyone, not just the people Supreme Court Justices like.