How is the "Allow States and Victims to Fight Online Sex Trafficking Act of 2017" constitutional?

Question

H.R.1865, known as the "Allow States and Victims to Fight Online Sex Trafficking Act of 2017", recently passed both chambers of Congress and was signed into law by president trump. I'm not a lawyer, nor do I have much experience with the law, but the fact that this bill passed, almost unanimously, really concerns me. I want to clarify that I'm not advocating for prostitution or sex trafficking. I'm simply interested in the constitutional legality of the bill and the precedent that it sets.

A summary of the bill and its actual contents can be found on Congress.gov: H.R.1865 - Allow States and Victims to Fight Online Sex Trafficking Act of 2017.

I have several questions about the legality of this bill. After reading through it, it seems to violate the constitution in a couple ways:

Section 4, Subsection (b)

"Effective Date - The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment."

This seems like a violation of Clause 3 of Article I, Section 9 of the Constitution which clearly states that Congress shall not pass any Ex Post Facto law. Meaning, a law that can be applied retroactively. Am I missing something?

Section 2 and Section 3

The purpose of these sections, and the bill in general, is to add an exemption to section 230 of the "Communications Decency Act of 1996" for websites that promote or facilitate prostitution or sex trafficking. The purpose of section 230 was to limit liability for the owners of a website in regards to content generated by the website's users. This new law essentially strips away that limitation. So, states can now prosecute an individual who owns or operates a website for content produced by the users of the site, if those users advertise prostitution or sex trafficking.

This seems like a clear violation of the First Amendment of the Constitution. How can an individual be held legally liable for content, free speech, created by other individuals? Consider the amount of content produced, even within a short period of time, by websites such as Facebook, Reddit, Twitter, etc. How is it that they should be obligated to regulate the free speech of others?

What makes prostitution and sex trafficking the only crimes exempt? Essentially, why not make all crimes exempt? That one simply defies logic, in my opinion.

Other Concerns

Section 4, Subsection (a) states:

"Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both."

How is this a federal crime when the legality of prostitution is regulated by the states and is not among the enumerated powers of the federal government? I'm guessing that because it stipulates that it must be a "means of interstate or foreign commerce", that it falls within federal jurisdiction?

Lastly, if indeed this law is unconstitutional, how does the public go about challenging it's legality? Thanks.

Answer 1

As for the ex post facto question, an ex post facto law is one that makes an act illegal when it was legal at the time of the commission. Let's now look at the clause:

(b) Effective date.—The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment.

What amendment is made in section subsection a?

Section 230(e) of the Communications Act of 1934 (47 U.S.C. 230(e)) is amended by adding at the end the following:

“(5) NO EFFECT ON SEX TRAFFICKING LAW.—Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—

“(A) any claim in a civil action brought under section 1595 of title 18, United States Code, if the conduct underlying the claim constitutes a violation of section 1591 of that title;

“(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18, United States Code; or

“(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, United States Code, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.”.

This does not make any act illegal. It say "we don't mean by this that...", and does not make any act illegal.

The basic definition of the crime is here:

§2421A(a) Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both

likewise §2421A(a). The bold part is standard language invoking the Commerce Clause, which is the source of federal authority in what would otherwise be a state matter. The italicized part, referring to intent, indicates that the website owner/operator has to have a wrongful intent, so it's not just a penalty against those who own or operate a website for content produced by the users of the site, if those users advertise prostitution or sex trafficking.

The First Amendment has a number of limits, for example you are not free to threaten or defraud, or advertise murder for hire, of advertise employment, housing or lodging (etc) discriminatorily (e.g. "Women need not apply" is illegal). The question would be whether the government has a compelling interest in limiting free speech (I think the court would say yes), and is this the narrowest restriction possible that accomplishes that interest (again, yes). So it would probably pass strict scrutiny.

The purpose of the act is both to tune up the Communications Decency Act and to extend the Mann Act, which makes certain forms of interstate sex a crime. So, 18 USC 2422

(a)Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both"; (b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

This expands the federal limits on prostitution in a standard way.

Answer 2

I think User6726 is basically right on the first and third points, but I see the First Amendment issues differently.

Ex post facto and interstate commerce

This isn't an ex post facto violation because the retroactive parts aren't creating any new criminal liability, and the limits on prostitution are permissible because they aren't really limits on prostitution, but rather limits on interstate commerce and communications.

Free speech issues

I don't think this bill would even need to pass strict scrutiny, for two reasons.

First, the speech we're talking about is soliciting a crime. Solicitations to crime fall outside of the First Amendment's protections.

But even if they were protected, this bill doesn't actually do anything to limit anyone's speech. As you noted, the CDA was designed to protect publishers against liability in certain circumstances, something that the government has no obligation to do. HR 1865 just takes that protection away; it doesn't actually create a liability for publishers.

So the law isn't really limiting speech; it's just bringing an end to what was basically a period of non-enforcement of pre-existing limitations.

There is an interesting issue in the fact that it only does so for certain types of crimes. There's an argument to be made that this is an Equal Protection violation, but the government would be able to defeat it just by establishing that there was a rational basis for the difference. Probably just saying, "Congress thinks sex trafficking is worse than other crimes" would be enough.

There's a more appealing argument -- and I think this is where user6726 was coming from -- that this turns the generally applicable laws against solicitation into a content-based restriction. If that were true, it would need to pass strict scrutiny, but you only get to the point where you impose strict scrutiny if the speech itself is actually protected, which solicitation is not.

If it were, though, I think the law would fail. Does the government have a compelling interest in stopping sex trafficking? Yes. But is this the least restrictive way to achieve that goal? I don't think so. You have the criminal laws already on the books targeting the actual offenders, and you can enforce those against them without roping in the publishers. So if we got to strict scrutiny, I'd argue that the law goes too far.

How to challenge

The law has different parts that could be challenged in different ways.

On the criminal portions, there are two common approaches. First, you could do a little sex trafficking, wait to get caught, and then raise the issue as a defense.

That's generally frowned upon, so you could also go to court to challenge it preemptively by asking for a declaratory judgment, i.e. a judgment declaring that the law is unconstitutional. In that case, though, I think you'd basically have to out yourself as an aspiring sex trafficker who is afraid to open up shop because of these laws. Maybe you could do it anonymously, but that's not guaranteed.

On the civil portions, you have basically the same options. Wait to get sued and then assert the constitutional defense, or pursue declaratory judgment. I think declaratory judgment is often harder to get outside of the criminal context, but the courts have more flexible standards on a lot of issues when there are First Amendment interests at issue.