EFF Launches Lawsuit To Stop FOSTA/SESTA

Free Speech

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.

Filed Under: 1st amendment, 5th amendment, alex andrews, censorship, eric koszyk, fifth amendment, first amendment, fosta, free speech, sesta
Companies: eff, human rights watch, internet archive, woodhull foundation