Defendants Get Important FOSTA Win in 9th Circuit–Doe v. Reddit

This is the first federal appellate ruling applying FOSTA. (The DC Circuit evaluated a facial constitutional challenge to FOSTA in Woodhull). It’s an important defense win. If this ruling stands and persuades other appellate courts, it has significant implications for many other pending FOSTA cases.


The ruling addresses the crucial 1591/1595 question, which has vexed the courts (like much of FOSTA) for years. To state the question as simply as I can: assuming Section 230 otherwise immunizes the defendant, can a FOSTA plaintiff get around it by showing a lower mens rea (1595), or must it show the higher mens rea required by 1591? As I’ve explained before, the SESTA Manager’s Amendment added the higher mens rea after the pivotal October 2017 Senate Commerce Committee hearing. While the drafting wasn’t a model of clarity (like the rest of FOSTA), it was screamingly obvious that the SESTA Manager’s Amendment adopted the heightened 1591 mens rea to resolve the Senators’ concerns expressed at the hearing.

For reasons I don’t fully understand, plaintiffs around the country have nevertheless argued (sometimes successfully) that Congress preserved 1595’s scienter as a workaround to Section 230–essentially erasing a critical difference between SESTA as introduced and the SESTA Manager’s Amendment. The Ninth Circuit ruling, like seemingly every other judicial opinion interpreting FOSTA, expresses its answer in an unnecessarily confusing way, but the ruling says clearly enough that plaintiffs must satisfy the heightened 1591 mens rea to get around Section 230.

Facts and Ruling

This case is about user-uploaded CSAM on Reddit. The plaintiffs allege that Reddit moderators were lackadaisical about removing CSAM, even after notice, and CSAM items would quickly reappear after removal. Both sides agree that Section 230 applies to the claims (i.e., plaintiffs are suing Reddit for third-party postings containing CSAM). The question is whether FOSTA created a new Section 230 exception permitting them to get around it nonetheless.

§ 230(e)(5)(A) says Section 230 doesn’t apply to “any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title.” 1595 uses a “should have known” scienter standard. 1591 requires defendants to have “actual knowledge” to incur liability.

While this opinion is really a battle over the applicable scienter, the opinion frames the question as whose conduct matters:

Reddit argues that a website may only be liable for its own criminal conduct. Plaintiffs argue that a website may be liable as a beneficiary when someone’s conduct (likely a user’s conduct) violated the criminal statute and the claim against the website derives from that violation

This framing confusingly reifies the basic question underlying Section 230, which distinguishes between first-party conduct (not covered by 230) and third-party content (230 applies). In other words, if the defendants have engaged in wrongful first-party conduct, the FOSTA exception is irrelevant to Section 230’s application because Section 230 wouldn’t apply either way.

[If you’ve never read a FOSTA opinion before, yes, they are all this mind-bending.]

The Ninth Circuit holds that “for a plaintiff to invoke FOSTA’s immunity exception, she must plausibly allege that the website’s own conduct violated section 1591.” Underneath this anodyne conclusion, the court is impliedly making two key points: (1) users’ activities do not contribute to evaluating the defendant’s 1591 exposure, and (2) the applicable scienter to get around 230 is 1591’s “actual knowledge” requirement.

With respect to 1591, the court says: “a defendant must knowingly benefit from and knowingly assist, support, or facilitate sex trafficking activities. Mere association with sex traffickers is insufficient absent some knowing ‘participation’ in the form of assistance, support, or facilitation.” The plaintiffs alleged that:

Reddit provides a platform where it is easy to share child pornography, highlights subreddits that feature child pornography to sell advertising on those pages, allows users who share child pornography to serve as subreddit moderators, and fails to remove child pornography even when users report it, as the plaintiffs did in this case…Reddit makes money from advertising on all popular subreddits

The court says this is not enough. At most, this suggests Reddit turned a blind eye to the CSAM activity, which isn’t active participation in the venture. Thus, Reddit wins because Section 230(c)(1) still applies to the plaintiffs’ CSAM claims.

While this is a good legal development for FOSTA defendants, the convoluted way the court gets there is not a credit to Congress’ drafting. It also leaves open potential ways for future courts to distinguish this ruling.

It’s also interesting to see the Ninth Circuit treat Section 230’s application as no big deal, given how much tortured angst the Ninth Circuit has expressed towards 230 in the past few years (especially the Gonzalez ruling, now subject to Supreme Court review, which only got one nonsubstantive citation).

Case citation: Does 1-6 v. Reddit, Inc., 2022 WL 13743458 (9th Cir. Oct. 24, 2022)

More SESTA/FOSTA-Related Posts

* More Evidence that FOSTA Benefited No One
Omegle Denied Section 230 Dismissal–AM v. Omegle
Section 230 Helps Craigslist Defeat Sex Trafficking Case–LH v. Marriott
Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–GG v. Salesforce
Constitutional Challenge to FOSTA Fails–Woodhull v. US
Catching Up on a FOSTA Case–ML v. Craigslist
Facebook Loses Jurisdictional Ruling in Texas Sex Trafficking Lawsuit–Facebook v. Doe
Justice Thomas Really, REALLY Wants Section 230 Repealed (Even If He Has to Do It Himself)
Section 230 Immunizes TikTok for User-Posted Videos–Day v. TikTok
So Many Unanswered Empirical Questions About FOSTA
Another Problematic FOSTA Ruling–Doe v. Pornhub
Catching Up on Recent FOSTA Developments (None of Them Good)
Section 230 Preempts Claims Against Omegle–M.H. v. Omegle
To No One’s Surprise, FOSTA Is Confounding Judges–J.B. v. G6
FOSTA Claim Can Proceed Against Twitter–Doe v. Twitter
FOSTA Survives Constitutional Challenge–US v. Martono
2H 2020 Quick Links, Part 4 (FOSTA)
Justice Thomas’ Anti-Section 230 Statement Doesn’t Support Reconsideration–JB v. Craigslist
Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist
Section 230 Preempts Another FOSTA Claim–Doe v. Kik
Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist
Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court
Craigslist Denied Section 230 Immunity for Classified Ads from 2008–ML v. Craigslist
2H 2019 and Q1 2020 Quick Links, Part 3 (FOSTA/Backpage)
New Paper Explains How FOSTA Devastated Male Sex Workers
FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US
New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)
Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–Doe v. Salesforce
Latest Linkwrap on FOSTA’s Aftermath
Section 230 Doesn’t End Lawsuit Claiming Facebook Facilitated Sex Trafficking–Doe v. Facebook
New Essay: The Complicated Story of FOSTA and Section 230
Who Benefited from FOSTA? (Spoiler: Probably No One)
FOSTA’s Political Curse
FOSTA Doesn’t Help Pro Se Litigant’s Defamation Claim Against Facebook
Constitutional Challenge to FOSTA Dismissed for Lack of Standing (Guest Blog Post)
An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)
Indianapolis Police Have Been “Blinded Lately Because They Shut Backpage Down”
Constitutional Challenge Against FOSTA Filed–Woodhull v. US (Guest Blog Post)
Catching Up on FOSTA Since Its Enactment (A Linkwrap)
More Aftermath from the ‘Worst of Both Worlds FOSTA’
‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
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