Twenty-one States Inadvertently Tell The DC Circuit That The Plaintiffs Challenging FOSTA Have A Case

from the with-amici-like-these dept

The constitutional challenge to FOSTA chugs on. A few weeks ago the DOJ filed its opposition brief to defend FOSTA, and then last week several amicus briefs were filed intending to support the government’s side. But in reading the one filed by twenty-one state attorneys general, it seems that’s not what it did.

The important thing to remember about this appeal is that the question before the appeals court isn’t really about the constitutionality of FOSTA itself. What’s being appealed is the case having been dismissed for lack of standing by the plaintiffs. The district court never directly ruled on the constitutionality of the law; it only ruled that these plaintiffs had no right to complain about it to the courts. According to the district court these plaintiffs weren’t being hurt, or likely to be hurt, by FOSTA, and so it dismissed their case. What the parties are fighting about now is whether this assessment by the district court was right.

For the plaintiffs it makes sense to keep pressing the constitutional issue because shining a light on the unconstitutionality of the law illuminates the injury the unconstitutionality has already caused and will continue to cause. But the defense has a different and much simpler job. All the DOJ has to do to defend FOSTA is say is, “The district court was right. These people were not hurt by FOSTA and will not be hurt by FOSTA, so keep this case dismissed.” If the appeals court agrees that there has been no injury, and that there is unlikely to be any injury, then the case remains dismissed and this constitutional challenge goes away.

And so that’s what the DOJ’s brief basically does: parrot the district court’s decision that there is nothing to see here. The DOJ spent its pages arguing that there has been no injury, nor is there the likelihood of any injury, because FOSTA could not possibly empower prosecutors to reach the plaintiffs.

As the district court correctly concluded, plaintiffs? conduct is not ?proscribed by [the] statute,? and plaintiffs face no ?credible threat of prosecution thereunder.? [DOJ brief p. 10]

It’s an unfortunate position for the government to take, but it’s not an irrational litigation strategy. The only thing the DOJ needs to do here is assure the court that the plaintiffs have nothing to worry about.

But that’s exactly what the amicus brief by the twenty-one state attorney generals does not do. Although it is intended to support the DOJ’s defense of the statute, rather than supporting the DOJ’s argument that the plaintiffs’ complaints are much ado about nothing, their brief instead reads as a bright flashing neon sign warning the court that there is plenty of reason for them to be worried. Because, in contrast to the DOJ’s arguments about what FOSTA does not do, this brief reads as a paean to everything FOSTA is going to let the states do, including to people just like the plaintiffs.

First, it reminds the court just how much FOSTA empowers states like them.

FOSTA makes explicit that: (1) federal law no longer can be said to provide legal protection for websites that unlawfully facilitate sex trafficking; and (2) States may now pursue state-law prosecutions based on conduct that would also violate FOSTA. 47 U.S.C. ? 230(e)(5). [I]f a State criminalizes the same conduct FOSTA criminalizes, the State need not wait for the Department of Justice to prosecute traffickers operating in the State; the State?s prosecutors may do so themselves. FOSTA also authorizes a state attorney general, on behalf of the residents of his or her State, to initiate civil actions against those who violate 18 U.S.C. ? 1591 (?Sex trafficking of children or by force, fraud, or coercion?) if there is ?reason to believe? that an interest of the State?s residents has been or is threatened or adversely affected by the violators. [state AG brief p. 9-10]

It also tells the court just how keen they are to be so empowered. Although the brief is only 10 pages, more than five of them are devoted to a gushing inventory of all these states’ policy agendas against sex trafficking. [state AG brief p. 3-9]

It further implies that the only reason there have not been more prosecutions predicated on FOSTA to date is because the states first need to pass some laws to enable these prosecutions, and that takes some time.

Bills to accomplish this are currently pending before the Texas Legislature. Tex. H.B. 15, 86th Leg., R.S. (2019) and Tex. S.B. 20, 86th Leg., R.S. (2019). [state AG brief fn. 3]

In other words, this brief undermines all the arguments that the unconstitutional effects of FOSTA are hypothetical by instead essentially pointing out to the court that they just haven’t accrued yet. FOSTA empowers states to act, they are keen to act, and they just need a little more time until they will be able to act.

Which perhaps wouldn’t be so much of a problem if states were carefully focused on actual instances of sex trafficking. But the amici themselves are proof that such restraint is unlikely.

In particular, note that one of the states on the brief is Florida. Now think back to just a few months ago when Florida prosecutors stole attention away from the Super Bowl with their announcement that they had broken up a “sex trafficking” operation in Palm Beach? which then turned out not to be a sex-trafficking operation after all.

It was sex work prosecutors had discovered, sure, but at least three of the plaintiffs challenging FOSTA are advocates for sex workers, in no small part because they believe that advocating for sex workers helps keep them safe and out of the clutches of sex traffickers. They sued because they are worried about how the vague language of FOSTA can be used against their advocacy.

A big part of the DOJ’s argument is that no one could possibly misconstrue their speech on sex work with the speech relating to sex trafficking and end up using FOSTA to target them.

[Plaintiffs’] activity is wholly outside of FOSTA?s ambit. It is not proscribed by ? 2421A, which prohibits owning, managing, or operating an interactive computer service with the intent to promote or facilitate specific instances of illegal prostitution. Nor is it prohibited by ? 1591, the pre-existing federal criminal prohibition on sex trafficking. And because FOSTA amended Section 230 immunity only to permit civil claims under ? 1595 ?if the conduct underlying the claim constitutes a violation of section 1591,? and State criminal prosecutions ?if the conduct underlying the charge would constitute a violation of section 1591? or ? 2421A, see 47 U.S.C. ? 230(e)(5), plaintiffs do not face a reasonable fear of prosecution as a result of those amendments, either. [DOJ brief p. 15-16]

Yet here before the court is an amicus who not long ago got sex work and sex trafficking very badly mixed up. And here it is announcing to the court how excited it is that FOSTA has given them the power to get them mixed up in a way that will affect even more people, including those situated exactly like the plaintiffs.

The DOJ wants the court to believe that any injury the plaintiffs complain about is entirely speculative.

To the extent plaintiffs are concerned that a State or private litigant might attempt to bring a lawsuit against them in the future notwithstanding the text of FOSTA, that concern cannot provide plaintiffs with standing to sue the federal government here. [?T]hat fear is entirely conjectural, and ?require[s] guesswork as to how independent decisionmakers will exercise their judgment.? [DOJ brief p. 29-30]

But thanks to amici, we know exactly how these independent decision makers will exercise their judgment: badly. Thus, despite the DOJ’s best efforts to convince the court of the plaintiffs’ lack of standing, the state AG’s amicus brief has done the exact opposite.

In a way the amicus brief is just like FOSTA itself: not understanding the job that needed to be done but rushing in with legal guns blazing anyway. And just like FOSTA, this ill-tailored legal response has caused all sorts of collateral damage that just makes the problem to be solved worse.

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Comments on “Twenty-one States Inadvertently Tell The DC Circuit That The Plaintiffs Challenging FOSTA Have A Case”

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43 Comments
That One Guy (profile) says:

And a resounding facepalm was heard by all in the DOJ offices...

DOJ: The law would never result in prosecutors going after people like that, therefore they have no standing.

State AGs: We would absolutely go after people like that, the only thing that stopped us before was the lack of a law that allowed it, and now that FOSTA’s in place we’re working overtime to fix that.

DOJ: Damnit guys…

Stephen T. Stone (profile) says:

Re: Re: Re:

Any compelling government interest must be weighed against the civil rights of all citizens (and not just the ones you think “deserve” those rights). Laws that may serve the government interest but may also abridge the free practice of religion, for example, must not create an undue burden on the religious or else it may be unconstitutional. (You never know how a court, including SCOTUS, will rule on such matters.) The amicus brief in this case implies, if not outright says, the states listed therein are more than willing to trample on people’s civil rights to carry out prosecutions under FOSTA. That admission alone should be enough for any reasonable person to reconsider any support for that law.

Bruce C. says:

Re: Re: Re: Re:

That’s why I said "trample" rather than "outweigh".

There are compelling government interests in these cases, but they need to be weighed on a case by case basis against the rights of the people and the rights of the accused. The issue is "under what conditions can these rights be circumvented", not "how frequently can these rights be circumvented"

Anonymous Coward says:

Worser and Worser

"And just like FOSTA, this ill-tailored legal response has caused all sorts of collateral damage that just makes the problem to be solved worse."

Until we get over the obscene value of legislators gaining stature among voters by preaching against "the sex," we will be stuck with this sort of crap. No self-serving, career, legislator is going to stand his ground against the question, "So, what you’re saying is that you’re in favor of sex-trafficking and kiddie porn?"

One hope is that this Keystone Cops level of competitive stupidity will queer the game for all.

Anonymous Coward says:

Re: Worser and Worser

No self-serving, career, legislator is going to stand his ground against the question, "So, what you’re saying is that you’re in favor of sex-trafficking and kiddie porn?"

Of course they will not, as encouraging the moral panics allows them to increase their control over society.

Anonymous Coward says:

Re: Re: Re:2 Re:

Evolution didn’t stop with apes. Only difference now is the unevolved have a tiny measure of intellect which they believe puts them on par with their genetic betters.

This offends people, most of whom are unevolved (i.e., stupid) so reality will just impose itself on our denial over time. Neanderthals had similar denial over those "stupid" homo sapiens who engaged in long-term planning that built societies rather than living from hunt to hunt. They were loud, namecallers, and a bit stronger physically, so they knew they were better.

Anonymous Coward says:

Re: Re: Re:4 Re:

I am not convinced that intelligence is genetic.
The definition of intelligence is the subject of many disagreements and IQ tests are well known for their shortcomings. We are not well suited to measure our own intelligence and what is measured is highly dependent upon ones environment, education and social interaction.

John Roddy (profile) says:

Re: Re: Re:3

Your understanding of evolution is arguably even worse than your understanding of law.

Also, I guarantee you have Neanderthal DNA. Our species co-existed and even cross-bred for a very long time, and we have the genetic records to prove it. I’m not sure what makes you think Neanderthals somehow looked down on us. The actual evidence shows that we were total bros all the way up until they went extinct.

Anonymous Coward says:

Re: Re: Re:2 Re:

Why does this asshat not define wtf they are babbling about?
I imagine that this nebulous Compelling Government Interest could cover just about anything huh. Even the power grab going on right now could be whitehousewashed with this total bullshit term because it appears to cover everything.

Matthew Cline (profile) says:

Re: Re:

A citizen can’t challenge the constitutionality of a law by just saying "this law is unconstitutional". They have to say "I do X, the law has or will make X illegal, and that’s unconstitutional". In this case the feds have replied "no one will ever, ever use FOSTA to make X illegal, so those who do X don’t have any dog in this fight".

Anonymous Coward says:

Re: Re: Re:

If one or more citizens of a country are directly impacted by its laws, policies, practices and procedures than the entire populace of that country is indirectly affected. We could refer to this as Third Party Affectability.

For example, if a restaurant owner has customers that are impacted financially by some government edict then it is possible that the business will also be impacted and therefore they have standing. Can we refer to this as Third Party Standing?

If my neighbors are affected then my dog gets mad.

Sok Puppette (profile) says:

Re: Re: Re:2 Re:

If I grow corn on my farm and feed it to hogs on my farm, it affects the "stream of [interstate] commerce" and subjects me to Federal interstate commerce jurisdiction.

If that kind of tenuous pseudo-connection BS works one way, it should work the other. If the Federal government does something to violate the Constitution, then every American’s interest in living in a lawful constitutional republic is injured, and that means every single one of them has standing to sue for it.

I do agree that the courts are way too supine to apply such a rule, then.

Anonymous Coward says:

Re: Re: Re:3 Why just "every American's interest"

I live in Canada. I have not set foot outside of Canada since before the turn of the millennium. I refuse to travel to, through, over or anywhere near the US since I lost a good manufacturing job to NAFTA twenty years ago… and yet, I have been harmed by FOSTA.

How, you might ask? Craigslist used to carry personal ad listings for my hometown in Canada. Craigslist is based in the US and, even though personal ads are not illegal, the chilling effects of the US government lynching Backpage.com followed by the damage caused by their enacting FOSTA caused Craigsfist to turn tail and run, pulling every personal ad for every country not because it is lawful to compel them to do so but because they’re a small operation and the cost of further defending their 1st amendment rights (they’re in Alta California) would bankrupt them.

Censorship doesn’t just hurt authors. It also hurts everyone that is an audience for those works… and that can extend worldwide.

Sok Puppette (profile) says:

Re: Re: Re:4 Why just "every American's interest"

Well, sure, but, see, you just named an injury you’ve suffered that’s specifically a consequence of this particular law. You were deprived of personal ads by the chilling effect of this nonsense.

‘Course, the US courts still wouldn’t recognize your injury, but you are indeed injured. So you (ought to) have a different kind of standing, more like the kind the US Government is actually talking about.

A US citizen (ought to) have standing to challenge any unconstutional act of the US government purely because the lawlessness it promotes is injurious, regardless of what specific actions it causes anybody to take. That’s different.

… although I suppose you could argue that you’re also injured just by the dangerous effects of living next to a giant lawless mess, so maybe you should indeed have similar standing.

Bamboo Harvester (profile) says:

Re: Re: Re:4 Why just "every American's interest"

If I were Canadian, I’d see that as a terrific opportunity to start a Canadian-based "version" of Craigslist.

Zero US competition, you’d be getting back at those NAFTA wonks who cost you that manufacturing job.

If you want to talk about cross-border harm between the two countries, you need look no further than Asbestos, Canada.

ECA (profile) says:

Fairness act.

There was a debate over the fairness act.(its an interesting read)
It was stated that Since it was only restricted to TV/broadcast channels at the time that the LAW had no standing. As it wasnt for any other form of communication like News papers or Magazines..

so they Scrapped the regulation. And this has lead to OPINIONS, rather then truth based News, on TV. ALL news, and not just reports on our gov/politics.

And its something I mentioned before about this Law..

  1. we already have most of what it DOES as other laws.
  2. its only regulating 1 source, not news papers/TV/Magazines/Underground news and papers and info..
  3. this regulation was PRESSED into use EVEn after the fact, that the Site removed all Data pertaining TO this Law.
  4. Isnt there a law about RETROACTIVE regulations??
  5. and no foundation is needed to Enforce this law. we might was well demand a DMCA on everything on Youtube, just to piss everyone off. Even if we dontr have the rights/wrongs do do so..

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