The Ninth Circuit’s FOSTA Jurisprudence Is Getting Clearer (and More Defense-Favorable)

As you know, FOSTA was a poorly drafted statute with terrible policy outcomes. We’re still working through the first wave of litigation testing Congress’ poor handiwork.

Last October, in Doe v. Reddit, the Ninth Circuit issued an important ruling interpreting FOSTA. Like many other FOSTA rulings, the opinion was confusing and baroque. For example, it said that “for a plaintiff to invoke FOSTA’s immunity exception, she must plausibly allege that the website’s own conduct violated section 1591.” My post tried to translate this statement:

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.

Because Reddit’s holdings were potentially murky, I wasn’t sure how it would apply to future cases. Two new Ninth Circuit rulings make Reddit’s defense-favorable implications clearer.

In JB v. Craigslist, the panel affirmed the lower court ruling requiring higher defense scienter to invoke FOSTA’s Section 230 exception.

In Doe v. Twitter, the lower court ruled for Twitter on several issues but against Twitter on one FOSTA issue. With respect to the latter, Twitter asked the panel:

(1) whether the immunity carve-out in Section 230(e)(5)(A) requires that a plaintiff plead a violation of Section 1591; and

(2) whether “participation in a venture” under Section 1591(a)(2) requires that a defendant have a “continuous business relationship” with the traffickers in the form of business dealings or a monetary relationship.

Per Reddit, the panel said yes to Q1 and no to Q2. Twitter should now win the case.

In both cases, the panel noted that further proceedings may need to account for the Supreme Court’s Gonzalez and Taamneh rulings, as well as the Supreme Court’s response to the certiorari petition in the Reddit case. So we must wait-and-see if the Supreme Court changes the status quo or if other circuits disagree with the Reddit ruling. Barring those two developments, the Reddit ruling will significantly scale back plaintiffs’ (over)enthusiasm for FOSTA claims.

Case citations:

J.B. v. Craigslist, Inc., 2023 WL 3220913 (9th Cir. May 3, 2023)

Doe v. Twitter, Inc., 2023 WL 3220912 (9th Cir. May 3, 2023)

More SESTA/FOSTA-Related Posts

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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)
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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
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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
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Constitutional Challenge Against FOSTA Filed–Woodhull v. US (Guest Blog Post)
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‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
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Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
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What’s New With SESTA/FOSTA (January 17, 2018 edition)
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Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
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My Senate Testimony on SESTA + SESTA Hearing Linkwrap
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Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
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