More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)

by guest blogger Alex F. Levy

[For a discussion of retroactivity concerns under 47 U.S.C. §230(e)(5)(A), see my earlier post.]

A law violates the Constitution’s Ex Post Facto clause if it “makes more burdensome the punishment for a crime, after its commission, or…deprives one charged with crime of any defense available according to law at the time when the act was committed.” Beazell v. Ohio, 269 U.S. 167, 169 (1925). The clause does not merely prohibit Congress from from punishing acts retroactively; rather, “the constitutional prohibition is addressed to laws, ‘whatever their form,’ which make innocent acts criminal, alter the nature of the offense, or increase the punishment.” Collins v. Youngblood, 497 U.S. 37, 46 (1990) (internal citation omitted). Indeed, contrary to claims made in a legislative memo to Ann Wagner earlier this month, there is nothing to suggest that the Ex Post Facto clause only constrains the retroactive operation of Federal criminal laws (and sentences). A Federal law that retroactively exposes a defendant to increased punishment by a state is still a law that retroactively “makes more burdensome the punishment for a crime, after its commission.” Beazell at 169.

In the Worst of Both Worlds FOSTA, Sec. 47 U.S.C. §230(e)(5)(B) retroactively removes a barrier to state criminal prosecutions under laws that prohibit conduct outlined in the Federal sex trafficking statute (18 U.S.C. §1591). (47 U.S.C. §230(e)(5)(C), which retroactively removes a barrier to state criminal prosecutions under laws with no Federal counterparts, presents all of these same problems, and possibly more.) Defendants who previously would have been able to raise a defense to state prosecutions under 47 U.S.C. §230(e) are now unable to do so — even if the defense was available at the time they committed the crime. This is exactly the kind of retroactive maneuver the Court has rejected, time and again.  Whether the Federal law removes a defense to a state or Federal law is irrelevant from the standpoint of the Ex Post Facto analysis. If it is unconstitutional in one case, it is also unconstitutional in the other.

The better argument might be that the removal of the defense is merely a “change[] in the procedure[] by which a criminal case is adjudicated, as opposed to [a] change[] in the substantive law of crimes,” and thus permissible under the Ex Post Facto Clause. Collins at 45. But even if that is true, the provision clearly “affect[s] matters of substance” insofar as it exposes a defendant to punishment that exceeds what he faced at the time of his offense. Beazell at 69. Though 47 U.S.C. §230(e)(5)(B) only eliminates the defense to state laws that prohibit conduct that was already outlawed under Federal law (and thus does not “make innocent acts criminal”), these state laws may (and in some cases do) punish the conduct more harshly than their Federal counterpart. For example, while a violation of the Federal sex trafficking statute calls for a sentence of 10 years to life, Florida’s mirroring statute imposes a mandatory life sentence. Fla. Stat. § 787.06(3)(g). The Supreme Court has recognized that an ex post facto violation may arise “where under the new law a defendant must receive a sentence which was under the old law only the maximum in a discretionary spectrum of length.” Dobbert, 432 U.S. 282, 300 (1977). 47 U.S.C. §230(e)(5)(B) plainly violates the Ex Post Facto clause by retroactively exposing defendants to increased punishment for acts already committed.

The Supreme Court has long forbidden oblique violations of the Ex Post Facto clause. “Subtle ex post facto violations are no more permissible than overt ones.” Collins at 46. More than 150 years ago, it struck down clauses in a state constitution that “do not, in terms, define any crimes, or declare that any punishment shall be inflicted, but they produce the same result upon the parties, against whom they are directed, as though the crimes were defined and the punishment was declared.” Cummings v. Missouri, 71 U.S. 277, 327 (1867). The Court reasoned that “what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows….It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised.” Cummings at 325.

47 U.S.C. §230(e)(5)(B) retroactively removes a defense to a crime and exposes a defendant to increased punishment. The fact that it does not directly affect a Federal criminal law is irrelevant. The section violates the Ex Post Facto clause and should be struck down.

More SESTA/FOSTA-Related Posts:

* Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
* Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
* SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
* Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
* Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
* What’s New With SESTA/FOSTA (January 17, 2018 edition)
* New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
* How SESTA Undermines Section 230’s Good Samaritan Provisions
* Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
* Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
* Another SESTA Linkwrap (Week of October 30)
* Recent SESTA Developments (A Linkwrap)
* Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
* An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
* The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
* Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
* My Senate Testimony on SESTA + SESTA Hearing Linkwrap
* Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
* Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
* Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
* How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
* Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity