The First Challenge To FOSTA Was Dismissed — Along With The First Amendment’s Unique Standing Doctrine

A few months ago, the Electronic Frontier Foundation (EFF) sued¹ the government on First and Fifth Amendment grounds for enacting the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). A D.C. District Court dismissed the case on standing grounds in September, but EFF is possibly poised² to appeal.

Despite its noble aspirations, FOSTA has been criticized for making sex work more dangerous³, preventing the detection⁴ of sex trafficking victims, and targeting websites already subject⁵ to liability.

Critics have also voiced concerns about FOSTA’s chilling effect⁶ on free speech. Shortly after FOSTA was passed, for example, Craigslist shut down⁷ its “Personals” section. A flurry⁸ of articles⁹ on the Act’s possible chilling effects followed¹⁰.

In Woodhull Freedom Foundation v. U.S.¹¹, EFF argues that the Act is unconstitutional because it suppresses protected speech and induces censorship. 

This case implicates Section 230 of the Communications Decency Act¹² (CDA 230), which allows websites to assert editorial control over third-party content without exposure to liability.

CDA 230 enabled the Internet¹³ as we know it. Without the statute, platforms like YouTube, Facebook, and Wikipedia would have to censor their content extensively to avoid crippling litigation. Although CDA 230 includes exceptions for federal criminal actions and intellectual property rights, it gives service providers the leeway to curate platform content without risking liability.

FOSTA carved away at this decades-long protection by imposing federal criminal and civil liability on those who  “own[], manage[], or operate[] an interactive computer service” and host content with the intent to “promote or facilitate the prostitution of another person,” among other liability expansions¹⁴.

The law was passed earlier this year after the online classifieds platform Backpage.com was shut down¹⁵ by the Justice Department for enabling prostitution and sex trafficking. The website claimed immunity under Section CDA 230. However, in line with past cases against similar websites, the government charged Backpage for using a “facility” in interstate commerce to knowingly enable prostitution. 

EFF is representing five plaintiffs. Four of them–the Woodhull Freedom Foundation, Human Rights Watch, Alex Andrews, and the Internet Archive–share a concern that their platform content will face liability under FOSTA given the law’s vague and overbroad language. The fifth plaintiff, Eric Koszyk, is a licensed massage therapist who used Craigslist to find clients for his personal massage business. After FOSTA was passed, Craigslist took down his ads and refused to allow him to post new ones.

A D.C. District Court dismissed the case on standing grounds, yet did not address case law surrounding standing requirements for First Amendment claims. 

To establish standing under Lujan v. Defenders of Wildlife¹⁶, a plaintiff must have (1) suffered an injury-in-fact; (2) that is fairly traceable to the challenged conduct of the defendant; and (3) that is likely to be redressed by a favorable judicial decision.

A plaintiff must demonstrate¹⁶ an injury-in-fact by showing that she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” 

In holding¹¹ that EFF lacked standing, D.C. District Court Judge Leon noted that imminence is especially important in the context of pre-enforcement challenges. Fear of prosecution, he explained, cannot be “imaginary or wholly speculative.” Therefore, “allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”

The government contended that plaintiffs’ online conduct as described in their motion would not fall within FOSTA’s ambit. Judge Leon agreed, holding that the organizations did not establish a credible threat of prosecution. Moreover, the Court held that Koszyk failed to establish that a victory would likely alleviate his alleged particularized injury.

Missing from Judge Leon’s analysis, however, was the recognition that courts regularly take a broader view of standing for First Amendment claims.

As the Supreme Court noted in Secretary of State of Md. v. Joseph H. Munson Co., Inc.¹⁷, even where a plaintiff could bring a legitimate First Amendment lawsuit to prevent the suppression of protected speech, they may refrain from speaking anyway to avoid “risk[ing] punishment.”

A lower standing barrier for First Amendment cases follows from the notion that violations of the First Amendment impact “[s]ociety as a whole.” Therefore, litigants “are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” 

Leniency for First Amendment standing “manifests itself most commonly in the doctrine’s first element: injury-in-fact.” D.C. district courts have repeatedly¹⁸ referenced this language¹⁹ from the Supreme Court and have integrated “[t]he danger of chilling free speech” in their standing analyses. 

Further, the Supreme Court decided in Susan B. Anthony v. Driehaus²⁰that a threat of enforcement sufficient enough for standing can exist even if plaintiffs do not claim that their future speech will violate the law.

Notably, Judge Leon’s opinion in Woodhull Freedom Foundationignores the Supreme Court’s recognition of more permissive standing requirements under the First Amendment. 

The opinion suggests that, in this particular lawsuit, we should not be concerned about chilled speech because the government has confirmed that the actions described by plaintiffs would not trigger liability.

But how does this guarantee address concerns underlying the notion of chilled speech? The concept of chilled speech is rooted in a sense of uncertainty²¹ regarding how one’s speech will be received by the law. Merely establishing that conduct engaged in by a particular group of plaintiffs would not trigger legal sanctions does little to resolve this uncertainty more broadly, especially in the dynamic context of online platforms. 

Although it’s now easier than ever to publish information to a wide audience, this power implicates broader exposure to possible liability. Therefore, First Amendment concerns are especially pressing in the online context.

While it makes sense to require plaintiffs to have a colorable fear of liability, courts should err on the side of awarding standing in the online First Amendment context even if a plaintiff’s particular or prospective actions are deemed legal by the government.

A number²² of studies²³ suggest that individuals experience irrational anxiety about the possibility of litigation even if statistical evidence indicates that their conduct would rarely trigger a lawsuit. This conclusion makes intuitive sense: litigation is unpleasant, and even seasoned lawyers can often not guarantee zero exposure. 

Certainty that conduct will not trigger prosecution–as the government provided for plaintiffs in Woodhull Freedom Foundation–is rarely available. Assuming that ordinary speakers will adopt a court’s or the government’s precise reasoning when trying to comply with new laws is therefore unrealistic and does little justice to the First Amendment’s spirit.