from the stop hitting yourself dept
It’s like the scene in the Naked Gun, where Leslie Nielsen stands outside the exploding fireworks factory telling everyone, “Nothing to see here. Please disperse.” Such is the decision by the district court dismissing the EFF’s lawsuit challenging the constitutionality of FOSTA.
Since FOSTA’s passage, many have largely been reacting in terror at its vague, yet broad, language threatening civil and even criminal liability. It has led to the censorship of enormous swathes of legitimate speech as platforms seek to reduce this new risk. But in a decision Monday dismissing the case for lack of standing the district court basically declared that it couldn’t understand what everyone was so worked up over.
Standing has to do with who is entitled to file a lawsuit. Ordinarily you have to have suffered an actual injury, although in certain situations, such as constitutional challenges, parties can have standing if it is likely that they will suffer an injury. After all, we wouldn’t want people to have to expend resources needlessly in the effort to comply with an unconstitutional law, or have to risk prosecution in order to have its constitutionality tested before the courts. But the injury risk still needs to be reasonably likely.
Imminence, the element most relevant here, is concededly a somewhat elastic concept. Nevertheless, imminence “cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes – that the injury is certainly impending.” […] The concept of imminence has been particularly important in the context of pre-enforcement challenges. The Supreme Court has held that plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. A credible threat of prosecution exists when the challenged law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution. Thus, fear of prosecution cannot be “imaginary or wholly speculative,” and allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. [p. 15-16]
Yet here the court decided it was not.
It would be great if it were right, and no one had anything to fear. But while the court essentially declared the fears contorting the availability of online speech to be much ado about nothing, it didn’t do so in a way that would effectively allay those fears.
As the court ran through its analysis of the standing of each plaintiff, it struggled to see how what they proposed to do, and how what they feared would be chilled by the law, was targeted by the law.
[P]laintiffs say, FOSTA criminalizes “anything that promotes or facilitates prostitution, and not a specific crime.” This is particularly problematic because prostitution is an area where there has been significant advocacy, both by government entities and by private citizens. As plaintiffs see it, that advocacy places them in crosshairs. In pressing this argument, however, plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic of prostitution or sex work. [p. 22]
The above is some of what the court had to say about the lead plaintiff Woodhull Freedom Foundation. It concluded similarly for plaintiff Human Rights Watch. For plaintiff Jesse Maley a/k/a Alex Andrews, the creator and operator of an actual platform, ratethatrescue.org, it similarly minimized her concerns.
Under Maley’s reasoning, because providing housing or childcare services to sex workers “make[s] sex work easier,” Rate That Rescue could be said to promote or facilitate prostitution. For this reason, Maley fears that amendments to Section 230 – which clarify that immunity does not extend to conduct made unlawful by Section 2421A – could expose her to prosecution for the speech of third parties on Rate That Rescue. […] Her concerns, however, are unwarranted. Put simply, Maley has failed to show that Section 230 amendments expose her to a credible threat of prosecution. That is so because Maley, on the current record, lacks the mens rea to violate any of the provisions specified in Section 230(c)(5). […] In managing Rate That Rescue, Maley cannot possibly be said to act “with the intent to promote or facilitate the prostitution of another person” in violation of Section 2421A. Maley’s declaration concedes as much, repeatedly expressing concern that law enforcement could determine that “the user-generated content on Rate That Rescue promotes or facilitates prostitution.” But those formulations lack the critical mens rea element of the Section 2421A offense. Indeed, Maley herself does not even assert that law enforcement could credibly contend that, in managing Rate That Rescue, she acts “with the intent to promote or facilitate” the prostitution of another person. Of course, the mere promotion or facilitation of prostitution is not enough: Maley must intend that her conduct produce the specific result. [p. 25-26]
It’s a statutory parsing that would be a lot more assuring if it didn’t ignore another perfectly plausible read of the statute. Of course it’s ridiculous to say that Maley intended to promote prostitution. But that’s not what the statute forbids. In a subsequent passage the court dismisses the argument that FOSTA’s amendments to 18 U.S.C. Sec. 1591 create any additional legal risk for platforms. But the amendments expand the prohibition against the “participation in a venture” to engage in sex trafficking to include “knowingly assisting, supporting, or facilitating” such a venture. This language suggests that liability does not require knowledge of a specific act of sex trafficking. Instead, merely providing services to sex traffickers – even ones unsuccessful in their sex trafficking venture – would seem to trigger liability. In other words, knowledge seems to hinge not on knowledge of a sex trafficking act but on knowledge of a sex trafficking venture (including one that may even be victimless), yet both the statute and the court are silent as to how much, or how little, a platform would need to actually know in order to have “knowledge” for purposes of the statute. This vagueness is what is so chilling to them, because it forces them to guess conservatively. But the court provides little relief, and in dismissing the case denies the opportunity to even attempt to gain any.
Also, while these plaintiffs were suing because they feared prospective injury, plaintiff Eric Koszyk has already experienced a tangible injury directly traceable to the changes in the law wrought by FOSTA. He was a massage therapist who relied on Craigslist to advertise his services. In the wake of FOSTA, Craigslist shut down its Therapeutic Services section, thus limiting his ability to find customers. Without FOSTA (which would result if it were declared unconstitutional) it would seem that the shutdown decision could be reversed. But to the court this result would be too speculative:
Unfortunately for Koszyk, he cannot establish redressability under the relevant precedents. That is so because Koszyk has not established that a victory “will likely alleviate the particularized injury alleged.” It is well established that a plaintiff lacks standing when the “redress for its injury depends entirely on the occurrence of some other, future event made no more likely by its victory in court.” When, as here, a third party can exercise “broad and legitimate discretion the courts cannot presume either to control or to predict,” a court is generally unable to redress the alleged injury and, accordingly, standing is found wanting. [p. 27-28]
This is insanity. Of course the court can’t force Craigslist to re-open its Therapeutic Services section. But it can eliminate the reason for its closure and at least make the decision to re-open it possible. As long as FOSTA remains on the books it eliminates that possibility, and that’s an injury.
It didn’t go any better for the Internet Archive’s standing as a plaintiff. As a platform that handles a massive amount of third party created content, for which review would be impossible, it worried it could nonetheless be caught in FOSTA’s net. Don’t worry about it, said the court.
Although the Internet Archive represents that it does not intend to promote sex trafficking or prostitution, it believes that the Section 230 amendments 2 and the ambiguity of their scope may expose it to liability. Once again, however, there are no facts in the record supporting an inference of the mens rea standard necessary to peel back Section 230’s protections. The Internet Archive’s practice of sweeping up vast amounts of content from the web for indefinite storage, and its attested practical inability to review the legality of that third-party content, mean that that entity simply cannot meet the stringent mans rea standard required for liability under Sections 2421A, 1591, or 1595. [p. 28]
In a way, that sounds great. Don’t know what’s in all that user content? No problem. But the problem is, inevitably platforms are going to have some knowledge of what’s in all the user content. In fact, if Section 230 is going to work as intended to encourage platform moderation of content they are going to have to know. And, thanks to this decision, this knowledge remains a terrifying prospect for all.
It is likely that EFF will continue to press forward with this case, so it is not the final word on FOSTA’s constitutionality, but it is an unfortunate start.