Wherein The Copia Institute, Engine, And Reddit Tell The DC Circuit That FOSTA Is Unconstitutional

from the chilling-speech-is-not-cool dept

Ever since SESTA was a gleam in the Senate’s eye, we’ve been warning about the harmful effects it stood to have on online speech. The law that was finally birthed, FOSTA, has lived up to its terrifying billing. So, last year, EFF and its partners brought a lawsuit on behalf of several plaintiffs – online speakers, platforms, or both – to challenge its constitutionality. Unfortunately, and strangely, the district court dismissed the Woodhull Freedom Foundation et al v. U.S. case for lack of standing. It reached this decision despite the chilling effects that had already been observed and thanks to a very narrow read of the law that found precision and clarity in FOSTA's language where in reality there is none. The plaintiffs then appealed, and last week I filed an amicus brief on behalf of the Copia Institute, Engine, and Reddit in support of the appeal.

The overarching point we made is that speech is chilled by fear. And FOSTA replaced the statutory protection platforms relied on to be able to confidently intermediate speech with the fear of it. Moreover, it didn't just cause platforms to have only a little bit of fear of only a little bit of legal risk: thanks to the vague and overbroad terms of the statutory language, it stoked fear of nearly unlimited scope. And not just a fear of civil liability but now also criminal liability and liability subject to the disparate statutory interpretations of every state authority.

We have often praised the statutory wisdom of Section 230 before it was modified by FOSTA. By going with an approach that was “all carrot, no stick,” Congress was able to conscript platforms into meeting the basic objectives it listed in the opening sections of the statute: get the most good content online, and the least bad. But FOSTA replaced these carrots with sticks, and left platforms, instead of incented to allow the most good speech and restrict the most bad, now afraid to do either.

As a result of this fear, platforms have become vastly less accommodating towards the speech they allow on their systems, which has led to the removal (if not outright prohibition) of plenty of good (and perfectly lawful) speech. They have also been deterred from fully policing their forums, which has led to more of the worst speech persisting online. Notably, nothing in FOSTA actually modified the stated objectives of Section 230 to get the most good and least bad expression online, yet what it did modify nevertheless made achieving either goal impossible.

And in a way that the Constitution does not allow. What we learned in Reno v. ACLU, where the Supreme Court found much of the non-Section 230 parts of Communications Decency Act unconstitutional, is that online speech is just as protected as offline speech. Congress does not get to pass laws affecting speech in ways that don’t meet the exacting standards the First Amendment requires. In particular, if speech is impacted, it can only be by a law that is narrowly tailored to the problem it is trying to solve. Yet, as fellow amici wrote, speech is indeed being affected, deliberately, and, as we've seen from the harm that has accrued, by a law poorly tailored to the problem it is ostensibly intended to solve. As we explained in our brief, FOSTA has led to this result by creating a real and palpable fear of significant liability for platforms, and thus already driven them to make choices that have harmed online speakers and their speech.

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Filed Under: cda 230, fosta, free speech, intermediary liability, standing, unconstitutional
Companies: copia institute, engine, reddit

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  1. icon
    James Burkhardt (profile), 27 Feb 2019 @ 3:35pm

    Re: re: narrowly tailored to the problem it is trying to solve

    Narrowly tailored is a metaphor to something few people have experience with - tailoring. A narrowly tailored outfit is an outfit that is custom trimmed to provide a tight fit on a specific person, with little excess fabric.

    A narrowly tailored law is one designed to affect the issue at hand while impacting as little as possible outside the main goal. Note that we are talking about crafting the law in a narrow fashion, not just in defining the issue. No where in the article is Narrowly defined refrenced.

    In your example, the problem you solve is a broad issue. That is an problem because it will fail the hurdle of being a compelling government interest. We narrowly define the issue to help deal with 1st amendment concerns. That is part of narrow tailoring.

    The other side is is that how we deal with it should put the smallest burden on those affected. Rather than all speech is illegal, to resolve the concern of people speaking their mind, you would implement a list of opinions/thoughts that are wrongspeech. Or possibly a list of opinions/topics that are rightspeech. That is a narrowly tailored concept to bar people speaking their minds, depending on the goal.

    The broader the issue is defined, the broader the solution, the greater likelihood of chilling legal speech. The standards in the US require narrow tailoring, meaning crafting the definitions and the solutions to only accomplish the goal of the law. Its not strictly about the defnitions or the implementations, its about the impacts the law has on other speech.

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