Court Shelves Washington State Law That Would Turn Service Providers Into Criminals Based On Their Users' Behavior
from the good-move dept
Back in June, we wrote about a challenge — from both the Village Voice’s Backpage.com and the Internet Archive to a new law in Washington State, SB 6251, that effectively criminalized online service providers based on actions by their users. We’ve long talked about the problems of such secondary liability efforts, and thankfully the US has section 230 of the CDA that forbids most such efforts to apply secondary liability. And, indeed, the court has now granted a preliminary injunction against the law, citing the Section 230 issues, among other things. Basically, the court sides with Backpage and the Internet Archive on every issue here, finding the state’s reasoning in support of the law to be weak.
There are some important points in this ruling. First up, the court said that Section 230 applied, even though this was about a criminal law issue, rather than a civil law issue. Many (even Section 230 supporters) have argued that Section 230 only applies to civil law. The court notes that the law says it doesn’t apply to federal criminal laws, but says nothing about state laws. And, as such, CDA 230 should be seen to apply to state laws, even if they’re criminal:
If Congress did not want the CDA to apply in state criminal actions, it would have said so.
So, the law is already on shaky legs due to it being knocked out by Section 230. However, the court goes further to focus on how the bill violates the First Amendment as well, targeting the suppression of speech. It’s a pretty detailed explanation for how laws that target speech, rather than action, have a much higher bar, and this bill does not appear to meet that higher bar. Most importantly, the court recognizes that any laws targeting speech can have severe chilling effects, even on legal speech, and that’s unacceptable under the First Amendment:
The most problematic aspect of SB 6251 is not the protected speech that it regulates by its terms, but the likelihood that it will chill a substantial amount of protected speech in addition to the unprotected speech that Defendants argue the statute was meant to address
The court even notes that it could create chilling effects and potentially criminalize sites like Facebook and Twitter as well. While the state denied this possibility, the judge points out that it’s entirely possible to read the law in that way, and that alone could create chilling effects from companies trying to avoid criminal liability. Finally, the court notes that the law also almost certainly violates the Commerce Clause, because it would regulate companies located entirely outside of Washington State.
In other words, the state is on very thin ice here, as the court isn’t buying any of its arguments for why the statute is legal. At this point in the case, the discussion is just over whether or not an injunction is granted to block the enforcement of the law — and that’s now done. There’s still much more to come in the case, but the law doesn’t look likely to survive at this point, and that’s a good thing. There are some real issues that the law seeks to take on (mainly dealing with prostitution and child porn), but it does so in such a broad way and with the wrong tool: criminalizing service providers. It’s good that the courts are recognizing how this law is massively overbroad.