SESTA’s First Amendment Problems: 3 ideas of what a legal challenge might look like

by on April 20, 2018 · 0 comments

The recently enacted Stop Enabling Sex Trafficking Act (SESTA) has many problems including that it doesn’t achieve its stated purpose of stopping sex trafficking. It contains a retroactivity clause that appears facially unconstitutional, but this provision would likely be severable by courts if used as the sole basis of a legal challenge. Perhaps more concerning are the potential First Amendment violations of the law.

These concerns go far beyond the rights of websites as speakers, but to the individual users’ content generation. Promoting sex trafficking is already a crime and a lawful restraint on speech. Websites, however, have acted broadly and quickly due to concerns of their new liability under the law and as a result lawful speech has also been stifled.

Given the controversial nature of the law it seems likely that a legal challenge is forthcoming. Here are three ideas about what a First Amendment challenge to the law might look like.

SESTA and Users’ Free Speech Rights

SESTA impacts individual users’ speech rights. As Elizabeth Nolan Brown writes, the law will create a chilling effect that could result in harming the very victims it claims to protect and could lead to further marginalizing minority viewpoints.

Despite their increasing presence and role in our everyday lives, Internet intermediaries, such as social media, are not public forums, but rather private actors. The recent Praeger case in California against YouTube has reinforced this point. As a result, they may choose to limit speech or actions in accord with terms of service or other policies.  Some would argue that moderation decision made in consideration of liability by these private actors do not constitute a violation of speech rights, but rather merely a modification of existing terms of service. However, this ignores both the chilling effects of such regulations and the fact that speech that would not be a violation of terms is likely to be removed as a result of broad interpretations of SESTA.

In the landmark case Reno v. ACLU, the Supreme Court recognized the problem of censoring online speech. In striking down the parts of the Communications Decency Act (CDA) other than Section 230’s liability protection, the Court stated, “[T]he CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” The results of SESTA have been a swift suppression of certain speech online and not just sex trafficking.

For example, Craigslist removed its entire personal section in response to the passage of SESTA. Ads that in no way could be considered a violation of either the terms of service or sex trafficking under federal laws were removed along with any potentially violative ads. Similarly, sex workers have expressed concerns sharing client information as a way to keep one another safe would be impossible under the statute as passed. Removing all this information also makes it more difficult for individuals trying  to help identify trafficking victims and facilitate their escape to find and assist victims and investigators. All of this information is lawful speech that will be either considered illegal or effectively eliminated by unnecessary burdens intermediaries must take to protect themselves from both criminal and civil liability.

The courts have generally favored allowing to disallowing speech. While minimal limits regarding time, manner, and place have been upheld in some cases and courts have found the state may regulate obscenity, speech restrictions are generally subject to strict scrutiny and must be narrowly tailored. SESTA uses broad definitions to classify what is considered sex trafficking and is likely to include both voluntary and involuntary interactions. Similarly the fact that the “participation in a venture” standard appears to set a low bar for an intermediary encourages an act first, question second behavior similar to that which has failed for the DMCA. To prevent liability under the statute, intermediaries must either increase moderation or cease moderating altogether. It is almost certain that lawful speech will regularly be caught up in such extreme moderation.

Finally, there are the concerns that chipping away at Section 230 liability opens the doors to broader Internet censorship. The Internet has been a stronghold of Free Speech where any idea can be expressed while well-intentioned laws like SESTA risk encouraging the idea that controversial or disliked speech can be censored.

Defining Intermediaries’ Editorial Control

Prior to Section 230 in Cubby v. Compuserve, the federal district court for the Southern District of New York found that Internet intermediaries act more like a distributor such as a bookstore or library than a traditional publisher. As a result, they have less control over the content created and distributed by their services than an editor or publisher would. Therefore, at common law, the intermediaries were found to have less liability for defamation or obscenity than a traditional publisher. This liability increases or decreases depending on the intermediary’s involvement with user generated content. Intermediaries who create or modify content are not acting as intermediaries and may be held liable if such content is illegal, such as sex-trafficking related content, even prior to SESTA.

The First Amendment Rights of Intermediaries

Intermediaries have free speech rights too. They may choose content to restrict or not restrict. Curation of content has been found to be protected as a form of speech for intermediaries such as search engines by several U.S. courts. In the pre-Internet Smith v. California case, the Supreme Court struck down the application of strict liability for obscene materials of a bookstore.  The court found that the lack of a knowledge requirement for criminal liability to attach was unconstitutional. SESTA requires knowledge but is vague regarding what knowledge an intermediary must have to be considered a participant in such a venture. Additionally, it gives broad power to state attorneys general to conduct investigation or take action with mere reasonable suspicion of a violation. One potential challenge would be whether the lack of a Good Samaritan clause and the vagueness regarding what constitutes knowledge in the statute violates the standards set in Smith.  Combined with the apparent protections of speech rights for intermediaries in the decisions to curate content, it may be possible for the intermediaries themselves to mount a First Amendment challenge.

Conclusion

SESTA has now become law, but it is almost certain it will face a constitutional challenge from users whose content was blocked or the intermediaries themselves on First Amendment grounds. In the past the courts have recognized the importance of maintaining free expression and a wide range of discourse online even when such content may be objectionable to many, one can only hope they would continue that line of thought if SESTA faces a First Amendment challenge.

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