EFF Launches Lawsuit To Stop FOSTA/SESTA

from the and-off-we-go dept

This was predicted long before FOSTA/SESTA became law, but there were going to be constitutional challenges to the law — and it appears that EFF has filed the first such lawsuit, representing the Internet Archive, Human Rights Watch, the Woodhull Freedom Foundation, Eric Koszyk, and Alex Andrews seeking to have the law declared unconstitutional and getting an injunction against it being enforced. You can read the complaint directly, which touches on a few different issues, with the 1st Amendment being a key one:

Using expansive and undefined terms, FOSTA?s criminal penalties and ruinous civil liability turn entirely on what content and viewpoints online speakers publish, the content and viewpoints that a platform allows to be posted, and the editorial policies a platform uses in determining whether to block, modify or remove material created by others. The law has already muzzled countless online speakers and led to closure of many online platforms that hosted their speech. By this action, Plaintiffs seek to have the Act declared unconstitutional under the First and Fifth Amendments of the United States Constitution, both on its face and as applied to Plaintiffs, and to enjoin the government from enforcing the Act.

As for why these plaintiffs, the lawsuit and related posts on EFF’s site have more background, but the lawsuit sums it up nicely:

Plaintiffs are individuals and organizations engaged in constitutionally protected speech on the Internet, including a national human rights organization dedicated to sexual freedom, an international human rights organization, a massage therapist, an activist dedicated to assisting and advocating for the rights of sex workers, and a digital library of Internet sites and other cultural artifacts in digital form, that have already been harmed by FOSTA. Three Plaintiffs advocate for the legalization of sex work, both domestically and internationally, provide education, health and safety resources, and more broadly work to support sex workers, and are thus concerned that continuing their advocacy and assistance efforts will be considered ?promoting or facilitating? prostitution, or that prosecutors or civil litigants will allege that they ?recklessly disregard? that their activities may ?contribute to? sex trafficking. This uncertainty has stopped some plaintiffs from speaking, at significant costs to their organizational and individual missions. Another plaintiff has suffered constitutional and monetary injuries because the online platforms he used to disseminate his speech have shut down because the operators reasonably fear liability under FOSTA. Still others are uncertain as to the legality of their well-established practices.

Not surprisingly, the complaint relies heavily on Reno v. ACLU, the very important case that invalidated every part of the Communications Decency Act other than CDA 230. The original CDA, like FOSTA/SESTA, was a broadly worded horrific bill that had tremendous chilling effects for speech online leading the Supreme Court to toss out the law as unconstitutional. Since then, the consensus around CDA 230 has meant there hasn’t needed to be much litigation in this space, but FOSTA has revived it.

Both through direct restrictions and because of multiple layers of ambiguity, FOSTA is driving constitutionally protected speech off the Internet at a rapid pace; and, like the CDA before it, FOSTA ?threatens to torch a large segment of the Internet community.? Reno v. ACLU, 521 U.S. 844, 882 (1997). FOSTA?s restrictions on speech cannot satisfy strict scrutiny because they do not effectively serve a compelling interest and are not the least restrictive means of attempting to do so, its operative provisions are vague and overly broad, and its selective alteration of federal immunity for online intermediaries is designed to promote censorship. These constitutional defects are magnified by the law?s ex post facto application.

The threat to online freedom of expression is significant. As the Supreme Court explained in Reno, the Internet burst onto the scene as a unique and wholly new global medium of human communication that gave individuals access to information as ?diverse as human thought? on topics ranging from ?the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls.? Id. at 849-52. It also naturally enabled people to communicate about sex, which the Court has acknowledged is ?a great and mysterious motive force in human life? that ?indisputably [has] been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.? Roth v. United States, 354 U.S. 476, 487 (1957).

The case also highlights one other key similar case, which was COPA — the Child Online Protection Act, which was thrown out as unconstitutional as well. This case notes the similarities in FOSTA with those previous laws.

Passage of FOSTA represents the latest such effort, and is another example of where Congress got the balance wrong. Plaintiffs oppose all forms of human coercion and therefore do not question congressional intentions. And they support appropriately targeted and effective measures to end sex trafficking. But FOSTA will not reduce such practices; to the contrary, it only makes matters worse. The law erroneously conflates all sex work with trafficking. By employing expansive and undefined terms to regulate online speech, backed by the threat of heavy criminal penalties and civil liability, FOSTA casts a pall over any online communication with even remote connections to sexual relations. It has impeded efforts to prevent trafficking and rescue victims, and has only made all forms of sex work more dangerous. FOSTA has undermined protections for online freedom of expression, contrary to the near unanimity of judicial decisions over the past two decades.

For fairly obvious reasons, this is going to be a very, very important case to watch over the next few years, and I imagine the fighting over it is going to get pretty fierce.

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Companies: eff, human rights watch, internet archive, woohull freedom foundation

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Comments on “EFF Launches Lawsuit To Stop FOSTA/SESTA”

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Anonymous Coward says:

Re: Standing

I’m having trouble identifying how the plaintiffs have standing to sue here. The harm they have suffered is a chilling effect (the result of their own actions or the actions of non-governmental entities) and is not the result of the prosecution of an unconstitutional law. Why couldn’t the defendants challenge standing like they do in challenges to secret surveillance laws?

John Roddy (profile) says:

Re: Re: Standing

The "harm they have suffered" is a result of the badly-written law, not "their own actions." You’re gonna have to go into more detail on how it could possibly be their own fault, because that’s a logical stretch I can’t see. Look up the case United States v. Stevens if you’d like the very clear decision by SCOTUS of exactly how the government isn’t allowed to pull crap like this.

Also, "secret surveillance laws" is a bit of an overstatement, and has absolutely nothing to do with anything here. A lot of vague law like that is justified under the excuse of "national security," which isn’t even mentioned here.

Anonymous Coward says:

Re: Re: Re: Standing

In US vs. Stevens “The case arose in 2004 when Robert J. Stevens was indicted on charges of selling videos depicting animal cruelty”. There is no such indictment here.

Agree on my sloppy use of the phrase “secret surveillance laws”. That was imprecise. I was trying to refer to challenges to some surveillance laws launched by, for example, lawyers who no longer felt safe conversing with clients electronically and instead met in person, incurring additional costs. If I remember correctly, the challenge was tossed by the court due to lack of standing because the plaintiffs could not tie their costs to the new law directly enough to convince the court. I’ll dig around and see if I can find that case.

John Roddy (profile) says:

Re: Re: Re:2 Standing

United States v. Stevens is actually one of the single most important first amendment cases ever. It was specifically about a law being used to find "depictions of animal cruelty" are illegal, but SCOTUS shot down that argument on the basis that the law itself was way too broad. They went even further and spelled out exactly how narrow a law would need to be before SCOTUS would recognize an exception to the first amendment.

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

This is how the government interpreted the limitations of the first amendment, and suggested it be applied to determine if a law was constitutionally OK. SCOTUS didn’t just not agree, they outright said that it was scary.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”

That is why I cite this case as a clear example of what the Government is not allowed to do when it comes to laws that attempt to carve an exception into the first amendment.

As for the surveillance stuff, I think I know what you’re referring to, and it’s not relevant here. The concern with NSA’s surveillance was that it could possibly allow private conversations covered by attorney-client privilege to be swept up in bulk data collection, but still allowable as evidence in a case brought by the government. That’s an issue that pertains to what evidence the government is allowed to present in an existing case, not what speech the government is allowed to control or threaten before a case is even launched.

Anonymous Coward says:

Re: Re: Re:3 Standing

You wrote:

"As for the surveillance stuff, I think I know what you’re referring to, and it’s not relevant here."

Based on your explanation, I agree. See: "Standing" Up for First Amendment Rights

"United Presbyterian Church, the D.C. Circuit upheld an order to dismiss a claim challenging surveillance under E.O. 12,333 because the plaintiffs could not allege facts sufficient to support the notion that they had been subject to surveillance. Similarly, in Clapper, the Court held that plaintiffs asserted injuries too "speculative" to challenge the constitutionality of FISA’s Section 702. Though plaintiffs were human rights lawyers, journalists, and others who worked closely with likely targets of surveillance under Section 702, and hence it was probable that plaintiffs’ communications had been acquired, they could not show this allegation with enough definitiveness. In both cases, inability to attain standing stemmed from the secrecy implicit in government surveillance. More specifically, since the nature of national security often classifies key details, parties lack enough information to assert a sufficient injury."

You also wrote:

"United States v. Stevens is actually one of the single most important first amendment cases ever."

Totally agree. The government should not and legally can not be passing overbroad censorship laws.

However, this doesn’t address my main question, which is how the EFF has standing to challenge the law.

Note that "The Supreme Court stated the requirements for standing most clearly in Lujan v. Defenders of Wildlife. According to Lujan, a moving party must demonstrate (1) that it has suffered an injury-in-fact to a legally protected interest; (2) that the injury is caused by or fairly traceable to the challenged actions of the defendant; and (3) that it is likely that the injury will be redressed by a favorable decision." [From first link in my reply]

I did some digging and found Susan B. Anthony List v. Driehaus where a pre-enforcement challenge was repeatedly dismissed by lower courts due to lack of standing. Upon reaching the Supreme Court:

[T]he Court unanimously overturned the Sixth Circuit decision [1], holding that “a credible threat of enforcement” is a sufficient threat of injury to establish standing in a First Amendment case when bringing a pre-enforcement challenge. The Court cited the standard in Virginia v. American Booksellers Association of a “reasonable fear of prosecution” as an acceptable formulation of the “credible threat” standard.

This looks like a likely answer to my question. I would expect the government to challenge standing in the EFF case but, hopefully, the lower courts, citing Susan B. Anthony List, will reject the challenge.

John Roddy (profile) says:

Re: Re: Re:

a) No, it actually took effect retroactively. It was valid from the moment it was signed into law, and could be applied to anything even if it existed beforehand. That’s actually one of the reasons it’s being argued as unconstitutional.

b) EFF knows better than to rush things. A case as important as this needs to be handled very carefully, and that takes time.

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