FOSTA is terrible social policy that hurt multiple communities without clearly benefiting any community, but its bad results don’t automatically make it unconstitutional. In response to a facial constitutional challenge to FOSTA, the DC Circuit upheld the law after making several narrowing constructions. Analogous to how narrowing interpretations rendered the SAVE Act irrelevant (FOSTA’s precursor), the court’s interpretations decrease the odds that the government will bring FOSTA-based prosecutions.
This development provides another reminder of how FOSTA has utterly failed. The remaining ambiguity over its scope chills and inhibits socially beneficial and completely legal behavior, but the law doesn’t help reduce illegal behavior. I continue to wonder: exactly what was FOSTA’s point?
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The court reads the FOSTA phrases “knowingly assisting, supporting, or facilitating [sex trafficking]” and “promote and facilitate [prostitution]” to be coextensive with standard aiding-and-abetting principles. This narrows the provisions’ scope, but the term “aiding-and-abetting” is itself not very clear. Thus, this rhetorical move doesn’t help defendants identify what conduct is clearly legal. On the plus side, linking the statutory terms to “aiding-and-abetting” does seemingly import some beneficial language from the SCOTUS Twitter v. Taamneh case.
The court also limits the phrase “facilitate the prostitution of another person” to mean “cause a specific person to ‘be prostituted’ or help[] to orchestrate their prostitution.” Later, the court recapitulates: “FOSTA does not criminalize promoting prostitution broadly. It only punishes aiding or abetting the ‘prostitution of another person,’ which has a much narrower reach.” Thus, “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.”
Putting all of this together, the court says the new criminal provisions of FOSTA prohibit “aiding and abetting a group engaged in sex trafficking or acting with the intent to aid and abet the prostitution of another person.” It’s easy to quote this holding, but applying it in the field isn’t so easy.
Regarding Section 230, the court glibly says “court rulings are now consistent that Section 1595 requires an actual knowledge mens rea for participation in a venture.” The court adds in a footnote: “Initially, while two courts required actual knowledge, two others had held that constructive knowledge sufficed….The Ninth Circuit has since ruled that actual knowledge is required, Does 1-6 v. Reddit, Inc., 51 F.4th 1137, 1141, 1145 (9th Cir. 2022), and so all courts to have decided the issue thus far are now in alignment.” Given this court believes the issue is definitively resolved, I’m sure plaintiffs will stop making the 1591/1595 argument. 🙄 However, one way to read this is that the higher scienter required by 1595 is constitutionally necessary.
The plaintiffs also argued that FOSTA’s changes to Section 230 unconstitutionally deprivileged some speech on the basis of content/viewpoints. This is a dangerous argument because it goes to the heart of Section 230, which privileges many kinds of speech but selectively deprivileges other speech (initially, ECPA violations, IP violations, and federal crimes). The plaintiffs’ argument, if it succeeded, ran the risk of making all of Section 230 vulnerable due to its content-based distinctions. The court instead says there’s nothing untoward about Congress deprivileging “speech integral to criminal conduct”:
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.
Nothing in the First Amendment required Congress to confer Section 230 immunity on speech that violates federal criminal laws in the first place, and nothing in the First Amendment ossifies such immunity once granted against any later clarification.
By limiting this discussion to the federal crimes aspect, I think this case does not predict how courts would review the constitutionality of some proposed Section 230 reforms that make clearly improper content-based distinctions.
A reminder that FOSTA’s constitutionality (as narrowed) doesn’t make FOSTA a good law. It’s still a discredit to its supporters.
Case Citation: Woodhull Freedom Foundation v. United States, 2023 WL 4376244 (D.C. Cir. July 7, 2023)