This is the first federal appellate ruling applying FOSTA. (The DC Circuit evaluated a facial constitutional challenge to FOSTA in Woodhull). It’s an important defense win. If this ruling stands and persuades other appellate courts, it has significant implications for many other pending FOSTA cases.
The ruling addresses the crucial 1591/1595 question, which has vexed the courts (like much of FOSTA) for years. To state the question as simply as I can: assuming Section 230 otherwise immunizes the defendant, can a FOSTA plaintiff get around it by showing a lower mens rea (1595), or must it show the higher mens rea required by 1591? As I’ve explained before, the SESTA Manager’s Amendment added the higher mens rea after the pivotal October 2017 Senate Commerce Committee hearing. While the drafting wasn’t a model of clarity (like the rest of FOSTA), it was screamingly obvious that the SESTA Manager’s Amendment adopted the heightened 1591 mens rea to resolve the Senators’ concerns expressed at the hearing.
For reasons I don’t fully understand, plaintiffs around the country have nevertheless argued (sometimes successfully) that Congress preserved 1595’s scienter as a workaround to Section 230–essentially erasing a critical difference between SESTA as introduced and the SESTA Manager’s Amendment. The Ninth Circuit ruling, like seemingly every other judicial opinion interpreting FOSTA, expresses its answer in an unnecessarily confusing way, but the ruling says clearly enough that plaintiffs must satisfy the heightened 1591 mens rea to get around Section 230.
Facts and Ruling
This case is about user-uploaded CSAM on Reddit. The plaintiffs allege that Reddit moderators were lackadaisical about removing CSAM, even after notice, and CSAM items would quickly reappear after removal. Both sides agree that Section 230 applies to the claims (i.e., plaintiffs are suing Reddit for third-party postings containing CSAM). The question is whether FOSTA created a new Section 230 exception permitting them to get around it nonetheless.
§ 230(e)(5)(A) says Section 230 doesn’t apply to “any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title.” 1595 uses a “should have known” scienter standard. 1591 requires defendants to have “actual knowledge” to incur liability.
While this opinion is really a battle over the applicable scienter, the opinion frames the question as whose conduct matters:
Reddit argues that a website may only be liable for its own criminal conduct. Plaintiffs argue that a website may be liable as a beneficiary when someone’s conduct (likely a user’s conduct) violated the criminal statute and the claim against the website derives from that violation
This framing confusingly reifies the basic question underlying Section 230, which distinguishes between first-party conduct (not covered by 230) and third-party content (230 applies). In other words, if the defendants have engaged in wrongful first-party conduct, the FOSTA exception is irrelevant to Section 230’s application because Section 230 wouldn’t apply either way.
[If you’ve never read a FOSTA opinion before, yes, they are all this mind-bending.]
The Ninth Circuit holds that “for a plaintiff to invoke FOSTA’s immunity exception, she must plausibly allege that the website’s own conduct violated section 1591.” Underneath this anodyne conclusion, the court is impliedly making two key points: (1) users’ activities do not contribute to evaluating the defendant’s 1591 exposure, and (2) the applicable scienter to get around 230 is 1591’s “actual knowledge” requirement.
With respect to 1591, the court says: “a defendant must knowingly benefit from and knowingly assist, support, or facilitate sex trafficking activities. Mere association with sex traffickers is insufficient absent some knowing ‘participation’ in the form of assistance, support, or facilitation.” The plaintiffs alleged that:
Reddit provides a platform where it is easy to share child pornography, highlights subreddits that feature child pornography to sell advertising on those pages, allows users who share child pornography to serve as subreddit moderators, and fails to remove child pornography even when users report it, as the plaintiffs did in this case…Reddit makes money from advertising on all popular subreddits
The court says this is not enough. At most, this suggests Reddit turned a blind eye to the CSAM activity, which isn’t active participation in the venture. Thus, Reddit wins because Section 230(c)(1) still applies to the plaintiffs’ CSAM claims.
While this is a good legal development for FOSTA defendants, the convoluted way the court gets there is not a credit to Congress’ drafting. It also leaves open potential ways for future courts to distinguish this ruling.
It’s also interesting to see the Ninth Circuit treat Section 230’s application as no big deal, given how much tortured angst the Ninth Circuit has expressed towards 230 in the past few years (especially the Gonzalez ruling, now subject to Supreme Court review, which only got one nonsubstantive citation).