DC Circuit Upholds FOSTA’s Constitutionality (By Narrowing It)–Woodhull v. U.S.

FOSTA is terrible social policy that hurt multiple communities without clearly benefiting any community, but its bad results don’t automatically make it unconstitutional. In response to a facial constitutional challenge to FOSTA, the DC Circuit upheld the law after making several narrowing constructions. Analogous to how narrowing interpretations rendered the SAVE Act irrelevant (FOSTA’s precursor), the court’s interpretations decrease the odds that the government will bring FOSTA-based prosecutions.

This development provides another reminder of how FOSTA has utterly failed. The remaining ambiguity over its scope chills and inhibits socially beneficial and completely legal behavior, but the law doesn’t help reduce illegal behavior. I continue to wonder: exactly what was FOSTA’s point?

* * *

The court reads the FOSTA phrases “knowingly assisting, supporting, or facilitating [sex trafficking]” and “promote and facilitate [prostitution]” to be coextensive with standard aiding-and-abetting principles. This narrows the provisions’ scope, but the term “aiding-and-abetting” is itself not very clear. Thus, this rhetorical move doesn’t help defendants identify what conduct is clearly legal. On the plus side, linking the statutory terms to “aiding-and-abetting” does seemingly import some beneficial language from the SCOTUS Twitter v. Taamneh case.

The court also limits the phrase “facilitate the prostitution of another person” to mean “cause a specific person to ‘be prostituted’ or help[] to orchestrate their prostitution.” Later, the court recapitulates: “FOSTA does not criminalize promoting prostitution broadly. It only punishes aiding or abetting the ‘prostitution of another person,’ which has a much narrower reach.” Thus, “Section 2421A(a)’s mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution.”

Putting all of this together, the court says the new criminal provisions of FOSTA prohibit “aiding and abetting a group engaged in sex trafficking or acting with the intent to aid and abet the prostitution of another person.” It’s easy to quote this holding, but applying it in the field isn’t so easy.

Regarding Section 230, the court glibly says “court rulings are now consistent that Section 1595 requires an actual knowledge mens rea for participation in a venture.” The court adds in a footnote: “Initially, while two courts required actual knowledge, two others had held that constructive knowledge sufficed….The Ninth Circuit has since ruled that actual knowledge is required, Does 1-6 v. Reddit, Inc., 51 F.4th 1137, 1141, 1145 (9th Cir. 2022), and so all courts to have decided the issue thus far are now in alignment.” Given this court believes the issue is definitively resolved, I’m sure plaintiffs will stop making the 1591/1595 argument. 🙄 However, one way to read this is that the higher scienter required by 1595 is constitutionally necessary.

The plaintiffs also argued that FOSTA’s changes to Section 230 unconstitutionally deprivileged some speech on the basis of content/viewpoints. This is a dangerous argument because it goes to the heart of Section 230, which privileges many kinds of speech but selectively deprivileges other speech (initially, ECPA violations, IP violations, and federal crimes). The plaintiffs’ argument, if it succeeded, ran the risk of making all of Section 230 vulnerable due to its content-based distinctions. The court instead says there’s nothing untoward about Congress deprivileging “speech integral to criminal conduct”:

So all FOSTA does is clarify and reinforce the prior exclusion of immunity within the specific context of sex trafficking, and explain that the limit on immunity extends to civil liability as well.

Nothing in the First Amendment required Congress to confer Section 230 immunity on speech that violates federal criminal laws in the first place, and nothing in the First Amendment ossifies such immunity once granted against any later clarification.

By limiting this discussion to the federal crimes aspect, I think this case does not predict how courts would review the constitutionality of some proposed Section 230 reforms that make clearly improper content-based distinctions.

A reminder that FOSTA’s constitutionality (as narrowed) doesn’t make FOSTA a good law. It’s still a discredit to its supporters.

Case Citation: Woodhull Freedom Foundation v. United States, 2023 WL 4376244 (D.C. Cir. July 7, 2023)

More SESTA/FOSTA-Related Posts

* Section 230 Immunizes Snap, Even if It’s “Inherently Dangerous”–L.W. v. Snap
* The Ninth Circuit’s FOSTA Jurisprudence Is Getting Clearer (and More Defense-Favorable)
Defendants Get Important FOSTA Win in 9th Circuit–Doe v. Reddit
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