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from the should-would-could-and-did dept
The constitutional challenge to FOSTA suffered a significant setback late last month when the district court granted the government’s motion for summary judgment, effectively dismissing the challenge. If not appealed (though it sounds like it may be), it would be the end of the road for it.
What is most dismaying about the decision – other than its ultimate holding – is the court’s failure to recognize the chilling effect on expression FOSTA has already had, and which the DC Circuit had previously acknowledged when it found the standing needed for the plaintiffs’ challenge to continue, after the district court had previously tried to dismiss it once before for lack of it. In this latest decision, the district court again turned a blind eye to the expressive harm FOSTA causes and rooted its ruling not in the language of the appellate holding suggesting there might actually be a problem here but instead in the dicta of Judge Katsas’s concurrence, even though none of this more equivocating language was a binding observation by the appeals court.
For instance, at one point in the decision the district court wrote:
Plaintiffs also contend that the prior decision of our Court of Appeals as to plaintiffs’ standing in this case precludes my holding that § 2421A is susceptible to the narrowing construction I endorse above. I disagree. Indeed, I find that plaintiffs’ argument not only overreads the majority’s opinion, but also ignores Judge Katsas’s concurrence. More specifically, while the majority did point out that FOSTA’s language, including the “promote or facilitate” elements discussed above, could be read to sweep broadly “when considered in isolation,” Woodhull I, 948 F.3d at 372, the panel did so in the context of its analysis of plaintiffs’ standing to bring a pre-enforcement challenge. That standing analysis merely requires considering whether plaintiffs have established that they engage in activities “arguably” within the scope of the challenged statute, see SBA, 573 U.S. at 164, not that the statute does in fact prohibit the alleged activities. As such, the majority was not determining the precise scope of what FOSTA proscribes, but rather whether plaintiffs’ broad reading of FOSTA was “arguably” a valid one. In short, the majority did not decide how FOSTA should be construed, only how it could be construed. To that end, the narrowing construction of the law discussed above was neither endorsed, nor rejected, by the majority’s opinion. Indeed, in his concurrence, Judge Katsas expressly stated that the majority did not purport to construe the statute for anything other than the standing analysis, noting instead that the plaintiffs’ preferred reading was only “identif[ied] … as at least one possible reading of FOSTA.” Woodhull II, 948 F.3d at 375 (Katsas, J., concurring in part and concurring in the judgment). Judge Katsas wrote separately specifically to indicate that he viewed the plaintiffs’ reading ultimately as untenable, even if he did also agree that the plaintiffs had standing under his narrower reading. I therefore find that plaintiffs are incorrect in arguing that I am precluded from reading FOSTA so narrowly: our Court of Appeals did not take any position on that reading of FOSTA, and indeed Judge Katsas expressly adopted it. [p. 17 (emphasis in the original)]
The problem is, at no point did the district court actually consider how FOSTA’s language would be construed, let alone how it had already been construed.
In conjunction with their motion for summary judgment, plaintiffs did submit a statement of facts accompanied with a number of supporting affidavits. However, these facts and affidavits are material only to establishing plaintiffs’ ongoing standing—which defendants do not challenge—and the entitlement of plaintiffs to injunctive relief should they prevail on the merits. Because, as explained below, I find that plaintiffs’ facial constitutional claims are without merit, there is no need to address the facts underpinning plaintiffs’ request for injunctive relief. [fn 5]
Nor, for that matter, had the DC Circuit itself previously, as it had not been called upon to fully inquire as to the expressive effects of FOSTA and therefore could not officially indicate one way or another whether there were any for any or all of the plaintiffs. As it was, once it found standing for just two of them, it had ended its inquiry, because finding it possible for just two plaintiffs was enough to revive the challenge, and even Judge Katsas’s doubt as to the expressive harm he articulated in his concurrence was still nothing more than idle musing, and not a definitive finding of any sort.
Nevertheless, the appeals court, and even Judge Katsas, had observed that there very easily could be some impermissible expressive harms resulting from FOSTA arising from its vague language. Yet the district court chose to largely ignore that observation, or the factual record documenting the ways these plaintiffs had already been chilled. Instead it treated the Katsas concurrence as an official finding that FOSTA’s language could cause no expressive harms at all.
Judge Katsas wrote separately specifically to indicate that he viewed the plaintiffs’ reading ultimately as untenable, even if he did also agree that the plaintiffs had standing under his narrower reading. I therefore find that plaintiffs are incorrect in arguing that I am precluded from reading FOSTA so narrowly: our Court of Appeals did not take any position on that reading of FOSTA, and indeed Judge Katsas expressly adopted it.
As such, a proper construal of FOSTA leads to the conclusion that it is narrowly tailored toward prohibiting activity that effectively aids or abets specific instances of prostitution. I therefore have no trouble finding that its legitimate sweep, encompassing only conduct or unprotected speech integral to criminal activity, predominates any sweep into protected speech—indeed, under the narrow construal above, I do not read FOSTA to possibly prohibit any such protected speech, much less a sufficient amount so as to render the Act overbroad. [p. 18]
A finding of summary judgment assumes that there are no issues of material fact, and so the only legal question before the court would have been one of how the law should treat the agreed-upon facts. But here the district court’s own reasoning indicates that there is indeed a question of fact: is the language of FOSTA one that can chill lawful expressive activity, or one that does not? That there was a plausible reading where it might not does not seem dispositive, especially in light of the fact that such readings had already occurred (particularly with respect to the massage therapist, who lost his ability to advertise on Craigslist, through which he had been successfully advertised for years, once FOSTA passed and Craigslist found the legal risk of allowing such ads to be too great in the face of it). It is thus preposterous to find, as this court did, that FOSTA could not have a chilling effect when there is already plenty of evidence of one.
If this decision were to stand Congress would only end up further emboldened to make more laws like this one that chill speech, even though the First Amendment unequivocally tells them not to. Because per this court it only matters if Congress intended to harm speech, and not whether it actually did.
Though FOSTA may well implicate speech in achieving its separate purpose, such an indirect effect does not provide a basis for strict scrutiny: “even if [a law] has an incidental effect on some speakers or messages but not others,” it is to be treated as content neutral. [p. 23]
But FOSTA’s chilling effect has been far from incidental, and hopefully on appeal this harm will be recognized and remedied.
Filed Under: 1st amendment, chilling effects, dc circuit, fosta, free speech, section 230, standing
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