The House of Representatives is set to take up a bill this morning that would result in severe unintended consequences for free speech online. We are understandably concerned. The measure aims to target the deliberate commercial promotion of either coerced or underage prostitution – both of which are, rightly, serious federal crimes – but would unfortunately go much further.
So, why should we care? After all, this stuff is unsavory, and trafficking is about as evil as it gets. The ACLU itself is an aggressive anti-trafficking advocate, and we recently secured a major win banning such activity by U.S. government contractors.
The short answer is because the bill would unintentionally shut down lawful speech. The long answer is because it will result in a "notice-and-takedown" regime where both law enforcement and members of the public will notify platforms that a particular ad looks troubling, and risk-averse advertisers will immediately take it down without any due diligence to make sure it is, in fact, illegal. The most risk-averse will ban certain ads — and other speech — wholesale, just to be safe.
How did this all come about?
The bill is part of a by members of Congress to censor Backpage.com, the biggest online classifieds site after Craigslist. A couple years ago a few federal legislators and state law enforcement officials to remove its adult services ads. Backpage didn't bow to the pressure. The ads in question weren't illegal, and Backpage has its own procedures in place to filter out ads featuring underage or coerced subjects. It also cooperates fully with law enforcement when such ads are posted.
As for the bill, rather than narrowly targeting websites that knowingly advertise these despicable practices, it would allow police to criminally pursue a website that has no idea it is hosting, and has procedures in place to prevent, ads featuring criminal activity. It does so because the "intent standard" – what a prosecutor has to prove the defendant knew – is vague.
This would create two big problems.
First, as noted, this would create an effective notice-and-takedown regime, where sites just remove content wholesale when notified of a potential problem. Second, and perhaps worse, websites could start making themselves "willfully blind." That is, given the lack of clarity in what the sites have to know to be prosecuted, they would stop prescreening ads to look for criminal activity. In other words, the bill would unintentionally discourage good corporate citizenship and potentially make the problem worse.
Crucially, this bill won't just permit an anti-Backpage crusade. It'll apply to where you might potentially find prostitution ads, including Tinder, Grindr, OkCupid, Plenty of Fish, and even Twitter, Facebook, Tumblr and, yes, the supposedly reformed Craigslist.
Lawmaking is messy stuff, and mistakes like this happen. Working to combat coerced or underage prostitution is incredibly important; however, legislation must be carefully drafted to be sure to protect our free speech rights online.
Hopefully, the bill can be fixed. If not, you'll be hearing a lot more from us.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.