FOSTA Co-Sponsor Richard Blumenthal Tells Court FOSTA Didn't Change CDA 230 & That It Was Written To Violate 1st Amendment
from the saying-the-quiet-part-loud dept
Last week, the Wisconsin Supreme Court heard the Armslist case that we've written about a few times. This is the case where victims of a shooting are trying to sue the website Armslist that had hosted the ad for the gun that the shooter bought to use in the crime (likely legally). Most cases that have interpreted CDA 230 over the past twenty-odd years have agreed that the language of that law is clear that websites cannot be held liable for the actions of their users, but last year a Wisconsin appeals court decided otherwise. The Wisconsin Supreme Court agreed to revisit this decision, and last month we filed another amicus brief to explain the important issues at stake for the internet and free speech.
A number of other amicus briefs were filed as well -- including a stunning one on behalf of Senator Richard Blumenthal and some retired members of Congress, which first wrongly insisted that CDA 230 did not apply to the web platform being sued for actions of its users, and then went on to make some truly astonishing claims about FOSTA, a bill that Blumenthal was a key co-sponsor for.
It should be noted that Blumenthal and CDA 230 have a long history -- one that goes back to a time long before he was in the Senate. Back when he was merely a grandstanding Attorney General in Connecticut, Blumenthal regularly would threaten internet companies for the actions of their users, ignoring the fact that CDA 230 prevented Blumenthal from taking this action against them. He went after MySpace because some sexual predators used the site. He went after Facebook for the same thing. Oh, and how could we forget his years-long crusade against Craigslist. Basically, as Attorney General, every few months, Blumenthal would generate splashy headlines by grandstanding to the press about some evil thing that people had done on the internet -- and incorrectly blaming the tools and services that those had people used to do it.
So it was little surprise that when a chance came up to gut Section 230's critical protections for platforms, and by extension speech on the internet, Blumenthal became the key sponsor from the Democratic side of the Senate to push these changes forward (Senator Rob Portman was the key sponsor from the GOP).
Because it's long been apparent that Blumenthal has liked to ignore what CDA 230 did (and why), it is not too shocking that with this brief he attempted to make the Wisconsin Supreme Court ignore it too. But it is odd that he would do this by misstating how the bill he sponsored, FOSTA, changed Section 230, and would have had to change it if he wanted its protections to be curtailed, by pretending it didn't actually change it. Armslist, in its own brief, had correctly pointed out that the passing of FOSTA showed that CDA 230 provided platforms with broad immunity, and that Congress would have had to amend it if it wanted to exempt certain activities from its coverage. Yet somehow Blumenthal tries to argue that's not what FOSTA was for:
According to Armslist, “[t]hat Congress saw the need to amend the CDA to exclude protection for certain sex trafficking crimes” proves that the First Circuit’s broad reading of Section 230 was correct, because otherwise “the amendment would not have been necessary.” Respondents’ Br. 20. Armslist’s interpretation of FOSTA is astonishing, bold, and completely inaccurate.
[....]
The purpose of FOSTA was to “clarify” what was already true—“that section 230 of [the CDA] does not prohibit” suits like Backpage.com.
This last sentence is just wrong, and he should know that. He literally told reporters that the point of FOSTA was "that there's a need for stronger rules of the road when it comes to accountability in this industry." If CDA 230 wasn't already preventing the litigation he thought desirable, then there would have been no need to change it. And there certainly would have been no call for him to put out a press release praising the new "tools in our legislation" that FOSTA was intended to deliver if FOSTA did not make significant changes he thought were needed to hold platforms like Backpage liable.
The upshot is that with this brief, Blumenthal essentially admitted how unconstitutional FOSTA is. At best, if all FOSTA truly did was "clarify" how Section 230 operated, it was an unnecessary incursion on expression. But in bragging about the significant changes FOSTA brought, he also ends up confessing how they are an unconstitutional incursion on expression:
Congress did not enact FOSTA to narrow Section 230's applicability to traditional sex-trafficking actions. Traditional "sex trafficking crimes are clearly outside th[e] scope" of "speaking and publishing." FOSTA, however, created a new breed of sex-trafficking actions based on the sort of publication-related conduct that Section 230 ordinarily immunizes: (1) “facilitating a violation of” sex-trafficking law, including by “publishing information designed to facilitate sex trafficking,”
"Publishing information" is a 1st Amendment protected activity. Now it is possible that a court might determine that "publishing information designed to facilitate sex trafficking" falls into the somewhat ill-defined "speech integral to criminal conduct" exception to the 1st Amendment, but the "integral" part is a higher bar than you might think -- and speech that merely "facilitates" such activities seems unlikely to clear that hurdle (especially given that we already see FOSTA leading to the suppression of much broader speech than any that actually is involved in sex trafficking).
But, hey, I guess as long as Blumenthal is this committed to interfering with how Section 230 works, it makes sense that he'd have no problem interfering with how the First Amendment works too.
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Filed Under: 1st amendment, amending, cda 230, clarifying, fosta, free speech, intermediary liability, richard blumenthal, section 230
Companies: armslist
Reader Comments
The First Word
“Judges failing to support despicable people...
...is an indictment of the whole judicial system. The point of the bill of rights is that they apply to the worst of us.
Otherwise all the mob / law enforcement has to do is accuse their enemies of being the worst of us. (pedophiles, communists, whatever)
made the First Word by Ninja
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Section 230 is NOT the whole of The Law.
Sheesh. You are a maniac who keeps trying to assert the most narrow of legalisms so can prove that you were right.
YOU LOST FOSTA. -- And you're a maniac for feeling it a loss! -- Live with The Law clarified instead of trying to keep undue protections for your precious corporations while "natural" persons are harmed. -- And don't bother asserting are a few anecdotes of "sex workers" being harmed. You've NO actual evidence, just assertions.
IT'S NOT REDUCING SECTION 230. Sex trafficking and all that were ILLEGAL BEFORE, as you claimed by saying that FOSTA wasn't needed to take down Backpage. So by your own prior statements, NOTHING CHANGED AFTER FOSTA.
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Your rant needs more capital letters.
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Re:
Crap. This was meant as a reply to "Crazy Bob, my name is a palindrome."
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People who knowingly violate the U.S. Constitution should be charged with High Treason.
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Section 230 provides to people in general the same protections for corporations in particular. That corporations are far more likely to defend against charges that 230 covers thanks to their giant bank accounts is largely irrelevant.
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Re:
What about people who don't understand the legal definition of "treason"?
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Re: Section 230 is NOT the whole of The Law.
If, as you say, nothing changed after FOSTA, then it was a waste of taxpayer money, and your defense of a piece of legislation you claim to be useless is baffling.
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Re: Section 230 is NOT the whole of The Law.
Let me FIFY:
So, by your own prior statements that I cherry picked while ignoring a truckload of evidence debunking my shaky ideas, NOTHING CHANGED AFTER FOSTA.
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Re: Re:
I recommend The Chair.
Not an electric chair, just a stool with only one leg. You have to use it if you want to sit.
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Re: Section 230 is NOT the whole of The Law.
Backpage was seized before FOSTA passed, so no, it wasn't needed in that particular case. However, given that one of the rallying cries for passage of FOSTA was that it was needed to take down Backpage, and then it wasn't actually needed, it would seem that maybe FOSTA in general wasn't as needed as was claimed.
Yes, they were. Nobody is disputing that. What is at issue is whether the platform upon which trafficking posts were placed is responsible for those posts. Pre-FOSTA, a platform would be immunized for such posts, provided it did not have a hand in their creation, via Section 230. Post-FOSTA, they are potentially liable regardless of their level of participation.
A platform was previously immune from liability under Section 230 for certain things that it is now liable for under FOSTA. Thus, Section 230 was reduced in scope.
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So when are the courts declaring it unconstitutional? Because if even one of its fiercest supporters is so bluntly admitting it's unconstitutional then there's not much to discuss, no?
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Re:
The politicized courts, they don't work so well anymore.
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Re:
You'd like to think so, but as the Playpen debacle made clear judges are willing to bend over backwards if it means avoiding even the appearance of supporting despicable people.
'Sure it's bad/illegal, but if I actually rule against it then I'm going to get slammed as a pro-child porn/sex trafficking person. Better to just ignore it, not like I'm going to be impacted by the law.'
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Re: Re:
Them too..
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Re: Section 230 is NOT the whole of The Law.
Try again, kid.
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Re: Re: Re:
Are you going to let them take your country from you before you even know what you had? Wouldn't it be better if they have their balls wired to a lightning rod so as to not even let even one volt escape? I implore you.
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Re: Re:
The nwo has tip-toed plenty around the legal definition of the word treason all while committing the 'ACT OF TREASON.'
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Re:
The biggest issue is standing. In this case its a crap shoot if you can get standing by preempting the law, because to do so you have to claim you expect to be charged for facilitating sex trafficking, something no one wants to claim. Even if it is a concern, standing requires it to be likely to occur, not just a possibility.
Because of this, it will take actual FOSTA charges to allow a challenge to be brought. Something that hasn't happened because the only site they think they could have gotten away with it against was back page. It'll take a while before the fear dies down and content that might trigger the law shows back up on the clear web.
Give it a couple years, someone will slip up, THEN we can get a legal challenge.
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FOSTA proves that Section 230 is toxic, and there will be more exceptions as time moves on, at some point including people who have been harmed by the inability to remove defamatory content from search engines, such as in the Hassell case in California (where Yelp didn't remove a review). The Supreme Court declined to hear a clear-cut case that they could have used to resolve the existing "circuit law," but didn't.
Female victims of revenge-porn and cyberbullying have been driven to suicide by 230-immune content, and the former has worked to carve out its own exception, with the latter not far behind. Other countries have no equivalent to 230 and with the "right to be forgotten," even accurate content can now be taken down.
No one should have to answer to lies found when people search their names, but that's the way we are for now. Doubt it will last for more than another generation, though that's too late to save the female victims of revenge porn. The one revenge-porn site that was held accountable lost its 230 protection when it was found that the site owner was soliciting and posting the content. Many other such sites escaped liability. Anyone who is okay with that, who places 230 above the sexual privacy and reputation of women (or men, with the "avoid him" websites where women post), has a set of priorities I doubt they would apply if they were the ones targeted.
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Re:
Lets make the people who build roads liable for all the crime that is facilitated via road usage. Lots of women have been victimized by people who drove or walked on roads. What about those women? Where are your priorities now?
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Re:
You say that as if it helps your case somehow...
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Re: Re: Re:
nwo?
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Re: Re: Re: Re:
New World Order. He's either a conspiracy theorist crackpot, or making a joke; Poe's Law.
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Re: Re: Re: Re: Re:
Or he’s a wrestling fan.
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Re: Re:
Bring back CRAIGSLIST PERSONALS you fuckers. What about us adults who just want have fun? Have you got to ruin everything you fucks?
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Judges failing to support despicable people...
...is an indictment of the whole judicial system. The point of the bill of rights is that they apply to the worst of us.
Otherwise all the mob / law enforcement has to do is accuse their enemies of being the worst of us. (pedophiles, communists, whatever)
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Re: Re: Re:
Oops.. politically correct version of that: You nuckfuts.
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Female victims
Have been shot by guns and run over by cars in greater numbers. Female citizens have been empowered by guns, cars and Section 230 by orders of magnitude.
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Re: Section 230 is NOT the whole of The Law.
This coming from you is hilarious. Pot meet kettle.
Well, considering he has quoted primary source material that proves his assertions, I would say he does have actual evidence.
Then why did we need FOSTA?
And again I say, then why did we need FOSTA? By your own admission, it's a useless piece of legislation that doesn't do anything different than what is already on the books. Therefore it should be struck down as irrelevant, redundant, and unconstitutional.
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The content is not “immune” thanks to 230; the platform is immune from legal liability if the platform’s owner(s)/operator(s) had no direct hand in creating, publishing, or facilitating the publication of that content. 230 places liability not on the tool used to publish revenge porn, but on the person(s) who published it.
That admission hurts your argument.
That revenge porn site was held accountable precisely because the site owner solicited, posted, and facilitated the posting of revenge porn. They lost their Section 230 immunity from legal liability because of that. If owners/operators on the other sites had been found to have done what that asshole did, those sites would have lost 230 immunity, too. That is the whole point of 230: To place legal liability where it matters rather than just let the websites with the biggest bank accounts be sued for something those sites’ owners/operators had no hand in doing.
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Re:
Uh, how, exactly? According to you and your ilk, FOSTA didn't change anything so, how does something that does nothing prove something else toxic?
Well, currently you can get a court order to do this, which should be the ONLY way someone should be allowed force companies to remove content from online platforms. Anything less is an abuse of the system to unfairly silence opinions you don't like. Remember, defamatory is a pretty high bar, but by your definition, anything bad said about anyone would count.
Because reviews are opinions, which are protected speech under the First Amendment. You are literally arguing to not let anyone have any opinions anymore.
Likely because they agreed that the lower court got it right. In such cases there is no need for them to hear it.
Citations, facts, and statistics please. To my knowledge, all such sites have been shut down when discovered. If you post said content to Facebook (or other sites), then your profile gets shut down and removed along with the content you posted. What more do you want?
I'm sorry, please list the sites that actively support and encourage revenge-porn and cyberbullying. Also important to note, revenge-porn is actually illegal, no ifs ands or buts, while cyberbullying is legal but socially and morally spit upon.
And this is a good thing? So you could take down all information related to the earth being round, leaving only the flat earth conspiracy information. Yes that sounds like a GREAT idea.
Um, they don't. At worst they present evidence that said lies are lies, content gets removed and people move on. At best, no one even sees the lies. You do realize how big the internet is right?
Blah blah blah.
Wouldn't have saved them even if it was in place. Laws don't prevent people from doing bad things, it just gives society a way to punish them for their already committed actions. What you want is pre-crime punishment, or thought crime punishment. Which, is horrifying.
Yes, and? This is the law working exactly as intended. 230 protects websites that are innocent, and as soon as it can be proved they are NOT innocent, they lose that protection. The US is a country based on "innocent until proven guilty" you know.
Name one. Seriously, name one site that was deliberately facilitating and encouraging revenge-port that did not get shut down for it.
Nobody does this. It's all in your head. All known revenge-porn sites get taken down as soon as they are discovered. Pornhub doesn't count.
Ah so you're just mad you got blacklisted from all the brothels and legal sex workers. Got it.
If I was targeted for revenge-porn, I would go after the person who targeted me. If they operated a revenge-porn site, that would come to light and the law would shut it down. If they posted it on facebook I would contact facebook with a court order in hand and ask them to remove it, at which point they would. Problem solved.
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"8675309"
"facilitates"
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Re: Re: Re: Re: Re:
You are stuck in an either/or syndrome. Samantics 101
I guess all conspiracies are theories now days especially coined by cia.
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Creating a law..
There is a logic to creating a law..
1 is cant be made to point at 1 thing...It has to affect everything..A law on sex trafficking...Should be aimed at anything that deals with the problem..NOT JUST the net..
If we extend this to Mr. B... For every bank robbery we can get Sue all the auto makers, Tire manufacturer, Electronic firm, Who ever makes the Body parts, and so on.. For his push on sex trafficking, lets drop the Trafficking part..SEX.. No advertising of SEX.. Who are they affecting and is it everything? Newspapers? Internet sites? Porn sites? Penny news papers? Chat programs? Phones? Lets add cars to this for a few reasons(you need to drive there) Lets add Fuel..car needs it.. Who else can we sue for having the ability to advert SEX... TV?? Any and all adverts where A CHILD(yep,protect the children) can see or interact with said advert?? W/wo a CC card.
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Re: "8675309"
Jenny Craig really needs to buy the rights to that song and the 800 number. Every time the song plays, it would be an ad for the company.
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Re: Re: Re: Re: Re: Re:
Semantics 101..
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Re: It’s odd considering your little “problem”
Boy Jhon you really do seem to have a fixation on revenge porn.
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Re: Re: It’s odd considering your little “problem”
No, that's misdirection. What he's really concerned about is that little parenthetical aside:
See how he squeezes it in there as if he's just mentioning it in passing? But that's really what he's concerned about. He wants to be able to prevent women from warning other women about bad experiences they've had with certain men.
Wonder why.
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Re: Re:
Come on Thad, get real. It 's not like treason is a difficult word to understand. Unlike 'is' of course. That one almost brought a president down.
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Re: Re: Re: Re: Re: Re:
Maybe everyone is assuming a "he" ,but I think its the person who organized the million man mulch that never took place.
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Re: Re: Re: It’s odd considering your little “problem”
Same reason why he's very interested in Europe's "right to be forgotten" laws.
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Re:
Starting with the Cheeto?
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Treason
I never understood what treason is, or why it's acceptable as a law. Anything that would be a crime if acted against a private party is already a crime. Anything that would not be a crime against a private party should not be a crime against the state.
Even aiding and abetting / giving comfort to enemies of the state is already defined by aiding and abetting / giving comfort to criminals or fugitives from the law. This is to say treason should be covered in all cases by laws not about treason.
Is there something I'm missing?
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In the race for headlines, your rights are up for debate. Doesn't matter if its real or not, headlines matter more!!!
So many stupid people cheering this on... I look forward to someone suing a platform they use under the same circumstances & watch them trying to pretend it is somehow different.
Liability is on those involved, not the platform b/c they have money. We'd call them crazy if a drunk driver sued the car maker, the city, the county, they state for providing the car & roads he drove drunk on... but add a moral outrage (imagined or not) and this is perfectly okay in some peoples minds.
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Re: Re:
You ask for facts, evidence and honesty. You won't get any of them from this moron.
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Re: Treason
A legal tradition essentially at this point - it has already been narrowed to the witnesses requirements to guard against its rhetorical abuse of "doing things the head of state doesn't like such as lesje majesty. Violent or subversive undermining of the concrete state able to enforce the laws and rights. Practically it is seldom used.
Technically one couls be caught on a single camera killing a bunch of US soldiers as a US citizen and not meet treason requirements - the camera would be one witness at best.
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Re: Re: Re: It’s odd considering your little “problem”
I can actually understand such a worry, especially in the modern climate of "always believe the victim." I once dated a crazy girl. And not in the sense of "wow, my ex is sooooo crazy," but actual literally "conveniently neglected to mention the schizophrenia before we started dating" crazy. Full-on hearing voices, bizarre government mind-control conspiracies, the works. Stuff I used to think was only how it's portrayed in movies before I interacted with her.
More than once she hallucinated up really awful things that I had supposedly done to her and berated me over them, even years after we broke up and I moved to another state. (Not to get away from her per se; I had found a new job. But it was definitely a factor!) Stuff that if she accused me of it in public would likely end with me getting lynched. So yeah, when someone talks about being worried about systems that allow people to broadcast accusations under circumstances where they're likely to be believed uncritically... I totally get that. There are good reasons why that's a bad thing!
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Re: Treason
The writers of the Constitution also took a rather limited view on treason. That's why it's specifically defined in said document while no other crime is. They'd had enough of people being falsely accused of treason while under British rule.
Unfortunately, your "aid and comfort" analogy doesn't quite work in all cases. Let's say that it's World War II, there's no specific law against treason, and I decide to knowingly assist Nazi Germany in designing a new bomber aircraft after the United States has entered the war. I have provided aid to the enemy. However, the enemy isn't a criminal or a fugitive. What law have I broken? This is why treason still needs to be a valid criminal charge. It needs to have a high bar to clear in order to keep people from being falsely accused but, it still needs to be there.
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Re:
Love the idea... But logic tends NOT to believe it, even if true.
Lets solve drunk driving..NO MORE CARS..ok!! Then we have Drunk horse riding.. NO MORE HORSES!! Then we get drunk Bike riding...No MORE Bikes..?? Drunk piggy back rides???
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