DC Circuit Hears Oral Argument In The Constitutional Challenge Of FOSTA
from the cautious-optimism dept
It is impossible to read the tea leaves at an oral argument and come away with any dependable prediction of how the judges will rule. But at the oral argument last Friday at the DC Circuit it appeared that the judges at least understood what they needed to in order to rule in the plaintiffs’ favor and revive their Constitutional challenge of FOSTA.
Which does not mean they necessarily agreed with the plaintiffs’ argument for why the law is unconstitutional. But they don’t have to right now. The only question before them was whether the plaintiffs have the standing needed to make that case.
The district court originally ruled that they did not. In its decision it basically said, “You’ve not been hurt, and, based on this particular way of reading the statute, you are not going to be hurt.” At the hearing last week the DOJ continued to push this sort of reading, which would find the plaintiffs’ activities to be beyond the statute’s reach.
But, as the panel pointed out, the DOJ’s reading of the statute was not the only possible reading of it. The court considered how so many others had read it, noting the changes Reddit had made and, in particular, how Craigslist had responded, which, the court recognized, also bore directly on one of the plaintiff’s cited injuries. This plaintiff, Eric Koszyk, a masseuse, had been advertising without incident on Craigslist for 12 years. It was only after FOSTA was passed that this outlet disappeared as Craigslist deleted the sections he had used to advertise, with the statement that it hoped it could someday bring those now-deleted sections back. Surely this widespread reaction to FOSTA’s passage is indicative of it presenting an actual risk of liability, the panel pressed. But the DOJ argued that such a conclusion was speculative. Furthermore, when Craigslist said it hoped it could someday bring its sections back, the DOJ argued, it was not a dig at FOSTA but merely an expression of the wish that someday Craigslist could be assured that its site wouldn’t be abused.
Of course, given that every site is prone to abuse, which is why we have Section 230 in the first place, the DOJ’s read of that comment is as suspect as its overly benign reading of FOSTA. But even if it were correct, on either front, it might not matter. As Judge Katsas observed, the question for the court to consider at this stage was whether the way the plaintiffs read the statute, prompting the fear of liability for its activities, is unreasonable. And at this stage, as Judge Griffith reminded, the case law told the court that it needed to “tread lightly.” In other words, it was the government’s burden to show that the plaintiffs’ read of the statute was unreasonable, and it did not seem like the panel was convinced it had met it.
Especially not when, as Judge Katsas also noted, the DOJ would not be the only authority interpreting the statute. It’s all well and good, the court seemed to say, that the DOJ said it would only enforce the statute in the limited way it represented to the court, but FOSTA is also going to be enforced in state courts in civil litigation and by state authorities who may well have their own read of the statute. The DOJ could not bind anyone involved with adjudicating those actions to read the statute the way it did.
It’s also questionable whether the DOJ itself feels limited to a benign interpretation of FOSTA. At one point Judge Rogers stated a belief that there was never a suggestion that sex worker advocates would be prosecuted, to which the plaintiffs pointed out several ways the DOJ had already threatened to.
Much of the discussion ultimately hinged on the significance of the statutory language referencing the prostitution “of another person,” and whether the “of another person” bit truly limited the scope of the statute. The court also spent time analyzing what the term “facilitating” meant, but no consensus was ever reached. Not only is there the general semantic question of whether the word “facilitating” can really be read as “aiding and abetting,” but there is also the substantive question of what kind of behavior this “facilitating” language could still target. If there is a website where people teach sex workers how to use PayPal, thus buttressing their own agency and making them less likely to be exploited by pimps, is that still “facilitating” prostitution?
Also, one of the problems with FOSTA is that it makes a mess of mens rea by being unclear about how much knowledge a website can have about how users use their systems. Judge Katsas pointed out that a site like Backpage might not actually have knowledge of individual transactions, yet that’s the sort of site the law ostensibly was intended to target. And if it could target Backpage even with this sort of attenuated knowledge of user activity, then whom else could it reach, and how would the plaintiffs not potentially fall within its sights? Judge Rogers commented that FOSTA would seem to catch anyone who simply wanted to make these unlawful acts safer.
Overall, though, the biggest takeaway from the hearing is that it is itself striking that three appellate judges and a very able DOJ lawyer could not come to a firm and shared conclusion about how the statute should be read. When some of the most capable legal minds in the country cannot come to such a consensus it is not a hallmark of a well-written or effective statute. It may in fact instead be evidence that it indeed poses a significant threat of constitutional injury that parties like the plaintiffs have standing to complain of, since no one can assure them that it doesn’t.