By Meredith Behrens

As many as forty million people are estimated to be trapped in modern day slavery.[1] Rather than disappearing with its formal abolishment in the 19th century, slavery has taken hold of victims not only in the United States, but around the world through human trafficking.[2] Roughly five million of these victims are victims of sex trafficking,[3] which is described as a “booming” industry that turns a yearly profit of 99 billion dollars.[4] Victims of sex trafficking are forced to engage in commercial sex acts such as prostitution or pornography through force, fraud, or coercion.[5]

Victims in the United States do not come from a set and predictable background.[6] Rather, victims of sex trafficking come from a variety of “races, ethnicities, sexual orientations, gender identities,”[7] socio-economic backgrounds, and educational levels across all fifty states.[8] However, victims are commonly minors, with the average age of entry balancing between fourteen and sixteen-years-old.[9] An estimated 300,000 American minors risk entry to the sex trafficking industry every year.[10]

The Effects of FOSTA

The expansion of the internet has only made the sex trafficking of victims easier.[11] In fact, three of every four victims may be trafficked online.[12] In 2018, Congress signed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) to combat the prevalence of sex trafficking online.[13] The text of the bill states that websites “that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.”[14] FOSTA seeks to correct this through both the amendment of the Communications Decency Act and the amendment of 18 U.S.C. § 2421 to add § 2421A.[15]

The Communications Decency Act (“CDA”) protects interactive computer service providers from being held as the publisher or speaker of offensive material published on their sites.[16] Service providers that allowed prostitution of children on their sites could claim immunity under the CDA.[17] However, FOSTA amends the CDA by adding to § 230(e) that the section has “no effect on sex trafficking law,” so these websites that knowingly allow for sex trafficking to take place were no longer protected.[18] Without this protection, there is an increased likelihood that service providers will monitor their sites to prevent and remove content related to the sex trafficking of individuals.[19] Section 2421A is the “centerpiece” of FOSTA,[20] which mandates a fine or imprisonment for whomever “owns, manages, or operates an interactive computer service . . . or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person.”[21] FOSTA both increases criminal liability and limits protections for interactive computer services with regards to sex trafficking content.[22] With such a substantial change, it is unsurprising that constitutionality concerns quickly arose.[23]

Constitutionality Concerns in Woodhull Freedom Foundation

On June 28, 2018, Woodhill Freedom Foundation filed a complaint in the United States District Court for the District of Columbia.[24] In that complaint, the plaintiffs assert that FOSTA violates both the First and Fifth Amendments to the United States Constitution, as well as the Ex Post Facto Clause.[25] This constitutional violation comes, in part, because plaintiffs claim it is “overbroad, vague, impermissibly targets speech based on viewpoint and content, pares back immunity from certain state law claims, erodes the scienter requirement, and wrongly criminalizes conduct that was lawful at the time committed.”[26]

Without addressing the constitutionality of FOSTA, the District Court granted the Government’s Motion to Dismiss after determining the plaintiffs did not adequately allege standing.[27] Plaintiffs appealed the ruling to the District of Columbia Circuit.[28] The Appellate Court heard oral argument on September 20, 2019, at which time Judges Rogers, Griffith, and Katsas determined whether a plausible interpretation of the language of FOSTA allowed for the plaintiffs to have standing.[29] Appellee argued that the text of 18 U.S.C. § 2421A specifically requires intent and refers to specific acts of prostitution rather than the concept of prostitution as a whole.[30] While the court admitted that this was a reasonable interpretation of the text, it appeared unconvinced that Appellant had not raised at least a plausible interpretation of the statute as well.[31]

On January 24, 2020, the Appellate Court released its holding regarding Woodhull Freedom Found, concluding that at least two of the five plaintiffs, Alex Andrews and Eric Koszyk, have Article III standing to bring forward a pre-enforcement challenge to the statute.[32] Alex Andrews created Rate That Rescue, a website that provides reviews of resources available to sex workers.[33] Eric Koszyk is a licensed massage therapist whose advertisements were removed from Craigslist after the passing of FOSTA.[34] Koszyk has suffered monetary losses as a result.[35] The Appellate Court reversed the District Court’s holding and remanded for further proceedings.[36]

Moving Forward

The District Court will now have to determine the constitutionality of FOSTA. There are two proposed interpretations of the statute before the District Court.[37] The Government’s constitutional interpretation of FOSTA is narrow, only including the promotion and facilitation of specific criminal acts.[38] The plaintiffs interpret the text broadly, to include a wide range of speech that goes beyond engagement in a specific criminal act.[39] Under the doctrine of constitutional avoidance, courts must disregard unconstitutional interpretations if they find an additional interpretation that is both reasonable and constitutional.[40] The District Court has yet to rule.

If the court determines FOSTA is unconstitutional, it is unclear what the effect will be. A significant decline has taken place in discovered sex trafficking activity online since the time of FOSTA’s passing, however, FOSTA was signed into law five days after Backpage (the most well-known site that allowed for sex trafficking) was seized.[41] While FOSTA did result in sites such as Craigslist removing relevant ad sections,[42] the test will be whether sex trafficking activity online will spike once more if FOSTA is off the books.

[1] Slavery Today, International Justice Mission,

[2] Id.; What Is Modern Slavery? Anti-Slavery,

[3] Sex Trafficking, End Slavery Now,; Sex Trafficking, Polaris,

[4] Human Trafficking by the Numbers, Human Rights First (Jan. 7, 2017),

[5] What is Sex Trafficking? Shared Hope

[6] The Victims, Human Trafficking Hotline,

[7] Violence Prevention: Sex Trafficking, Centers for Disease Control and Prevention,

[8] The Victims, supra note 6.

[9] Demand: A Comparative Examination of Sex Tourism and Trafficking in Jamaica, Japan, the Netherlands, and the United States, Shared Hope International at 5, [hereinafter Demand].

[10] Erin Weaver, Human trafficking has wide-reaching social impact, Souderton Independent (Jan. 18, 2014),

[11] Demand, supra note 9 at 5.

[12] See Child Trafficking Statistics, Thorn,; see also Robbie Couch, 70 Percent of Child Sex Trafficking Victims Are Sold Online: Study, Huffington Post (July 25, 2014), (“In 2014, buying a child for sex online can be just as easy as selling your old couch or posting an updated resume”).

[13] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No, 115-164, 132 Stat. 1258 (2018).

[14] Id.

[15] Id.

[16] Communications Decency Act, 47 U.S.C. §230 (2018).

[17] Alina Selyukh, Section 230: A Key Legal Shield for Facebook, Google Is About to Change, NPR (Mar. 21, 2018, 5:11 AM),

[18] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No, 115-164, 132 Stat. 1253 (2018).

[19] See Justice Department Seizes Classified Ads Website, Fox2News (updated Apr. 7, 2018, 9:13 PM),

[20] Woodhull Freedom Found v. United States, 334 F. Supp. 3d 185, 190 (D.C. Cir. 2018).

[21] 18 U.S.C. § 2421A(a) (2018).

[22] Patrick J. Carome & Ari Holtzblatt, Congress Enacts Law Creating a Sex Trafficking Exception from the Immunity Provided by Section 230 of the Communications Decency Act, WilmerHale (Apr. 16, 2018),

[23] Woodhull, 334 F. Supp. 3d at 189.

[24] Woodhull, 334 F. Supp. 3d 185.

[25] Id. at 189.

[26] Id.

[27] Id. at 203.

[28] Id.

[29] Oral Argument, Woodhull Freedom Found v. United States (D.C. Cir. 2019) (No. 18-5298),$file/18-5298.mp3.

[30] Id. at 17:40.

[31] Id.

[32] Woodhull Freedom Found. v. United States, No. 18-5298, 2020 WL 398625 (D.C. Cir. Jan. 24, 2020).

[33] Id. at *8.

[34] Id. at *9

[35] Id.

[36] Id. at *18.

[37] Oral Argument, supra note 29.

[38] Id.

[39] Id.

[40]  Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Sup. Ct. Rev. 181, 186 (2009).

[41] Eric Goldman, The Complicated Story of FOSTA and Section 230, 17 First Amend. L. Rev. 279, 285 (2018).

[42] Justice Department Seizes Classified Ads Website, supra note 19.

By Greg Berman

Controversy erupted last week after a George Washington University professor, Dave Karpf, tweeted a joke at New York Times columnist Bret Stephens’s expense.  Quoting an 8-word post about a bedbug infestation in the Times’ newsroom, Karpf joked that “[t]he bedbugs are a metaphor.  The bedbugs are Bret Stephens.”[1]  Although this tweet did not initially gain much traction, it later went viral when Stephens personally emailed Karpf, as well as the George Washington University provost, demanding an apology for the insult.[2]  After several more tweets and an off-scheduled column post by Stephens with visible references to the controversy, both sides of the feud seem to be slowing down.[3]  Although this back and forth is just one isolated incident between two individuals, it highlights a growing trend in our discourse.  With the growing usage of social media in our society, these sorts of ideological clashes have seemingly become more prevalent than ever.[4]  And even though these virtual arguments tend to be more of an annoyance than a liability, reputation-damaging attacks (even those made on the internet) still can run the risk of triggering a costly libel lawsuit.[5] 

The tort of libel is defined by Black’s Law Dictionary as “[a] defamatory statement expressed in a fixed medium, esp[ecially] writing but also a picture, sign, or electronic broadcast.”[6]  The enforcement of libel laws in the United States dates predates the ratification of the Constitution, most notably with the trial of John Peter Zenger, whose 1735 jury acquittal established the idea that someone cannot be charged with libel if the remark is true.[7]  Even today, the accuracy of the allegedly libelous statements continues to be one of key factors for courts to consider in libel cases, with each state setting their own standards for liability.[8]  Another key consideration for courts comes from New York Times v. Sullivan, where the Supreme Court differentiated defamation claims involving public figures and private individuals, holding that any libel suit against a public figure requires the inaccurate statement to be made with “actual malice.”[9]  Actual malice has been defined by the Court as “knowledge that (the statement) was false or with reckless disregard of whether it was false or not.”[10]  Additional protections against libel claims were enacted nine years later, when the Supreme Court limited libel laws to apply only to intentionally false statements of fact, even if a trial court is presented with baseless opinions that are similarly incorrect.[11]

Our ever-increasing move toward a digitalized world raises the question of how these libel laws can be applied to internet publications.  To start, no claim for libel can be made against any social media site, such as Facebook or Twitter, for content posted by a user of that social media site.[12]  This is primarily due to the expansive legal protections given to these “interactive computer services” by Section 230 of the Communications Decency Act of 1996.[13]  That being said, individuals may still be held liable for content that they post on the internet, with each state continuing to apply its own standards for libelous conduct even as information crosses state lines.[14]  When it comes to the question of jurisdiction, the Supreme Court clarified in Keeton v. Hustler Magazine, Inc. that a state can claim jurisdiction over a non-resident when injurious information is intentionally disseminated to its citizens.[15]  Specifically, the Court cited each state’s interest in protecting its citizens from intentional falsehoods as a key consideration in its decision.[16] While online information is disseminated in a different manner than the magazines from Keeton, courts have begun allow jurisdiction for internet libel cases when the online post directly targets one or more residents of the state.[17]

When applying libel laws to online statements, courts have used similar substantive principles to those used for print publications.  In 2009, former musician Courtney Love was sued by her former attorney after tweeting allegedly libelous remarks.[18]  As this was the first reported case to go to a jury decision for remarks made over Twitter, the trial court was left with a case of first impression.[19]  In a landmark decision, the court opted to apply traditional libel laws.  A jury found that Love did not know that the statements were false at the time they were made; she therefore lacked the actual malice required to be considered libel.[20]  

There have also been other cases involving libelous comments made over Twitter.[21]  For example, one such case took place after a tenant complained on her personal Twitter account about her “moldy apartment.”[22]  After seeing the post, the landlord sued the tenant under Illinois libel laws; the case was later dismissed with prejudice because the tweet was too vague to meet the requisite legal standards for libel.[23]  Another lawsuit took place after a mid-game conversation between an NBA coach and a referee was overheard and tweeted out by an AP reporter.[24]  The referee insisted that the reported conversation never took place, and the subsequent lawsuit ultimately resulted in a $20,000 settlement.[25]  Each of these cases present factually unique scenarios, but all together indicate a growing trend: even as the medium for public discourse has been rapidly shifting towards the digital sphere, traditional libel laws still continue to apply.

In addition to substantive treatment, there also remain unresolved legal questions stemming from courts’ application of the single publication rule.  The single publication rule provides that “any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication” and therefore “only one action for damages can be maintained.”[26]  The justification behind this rule is simple: by aggregating all damages allegedly caused by a publication to a single action, a party would not be perpetually bombarded with litigation long after their active role in publication has ended.[27]  This rule has already been adopted in “the great majority of states” and was implemented within the 4th Circuit in Morrissey v. William Morrow & Co.[28]  However, some academics have proposed that the single publication rule should not always be applied to social media posts, citing the possibility that a publisher could personally solicit shares or retweets and thereby maintain an active role in republishing libelous information.[29]  The issue of continual dissemination by means of retweeting seems primed to be raised in later litigation, but thus far has not been brought before any court.[30]  Still, many circuits have already begun the process of implementing the single publication rule to online posts in general (so far these cases have been litigated over personal blogs rather than Facebook or Twitter posts), so it will be interesting to see how courts handle the issue if eventually raised by litigants down the road.[31]

As the social media presence in our society grows stronger each day, only time will tell if courts will craft separate libel principles for online publications.  There are arguments to be made on both sides, especially now that online mediums are increasingly taking over many of the informational functions previously held by their print counterparts.[32]  For now, at least, courts are continuing to use the same traditional libel laws that have been evolving and changing since John Peter Zenger’s 1735 acquittal. [33]  And while the jury is still out on whether Dave Karpf actually thinks Bret Stephens is a metaphorical bedbug, he can likely rest easy knowing that current libel laws will protect his joke from any future legal trouble.

1. Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 5:07 PM),

[2] See Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 9:22 PM),; Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 10:13 PM); see also Tim Efrink & Morgan Krakow, A Professor Called Bret Stephens a ‘Bedbug.’ The New York Times Columnist Complained to the Professor’s Boss, Wash. Post (Aug. 27, 2019), (summarizing the context of Korpf’s tweet and the resulting controversy).

[3] See Dave Korpf (@davekorpf), Twitter (Aug. 30, 2019, 7:58 PM),; Bret Stephens, Opinion, World War II and the Ingredients of Slaughter, N.Y. Times (Aug. 30, 2019),

[4] Jasmine Garsd, In An Increasingly Polarized America, Is It Possible To Be Civil On Social Media?, NPR (Mar. 31, 2019)

[5] See id.; Adeline A. Allen, Twibel Retweeted: Twitter Libel and the Single Publication Rule,15 J. High Tech. L. 63, 81 n.99 (2014).

[6]  Libel, Black’s Law Dictionary (11th ed. 2019).

[7] Michael Kent Curtis, J. Wilson Parker, William G. Ross, Davison M. Douglas & Paul Finkelman, Constitutional Law in Context 1038 (4th ed. 2018).

[8] James L. Pielemeier, Constitutional Limitations on Choice of Law: The Special Case of Multistate Defamation, 133 U. Pa. L. Rev. 381, 384 (1985).

[9] 376 U.S. 254, 279–80 (1964); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (defining a public figure as either “an individual achiev[ing] such pervasive fame or notoriety” or an individual who “voluntarily injects himself or is drawn into a particular public controversy”).

[10] Sullivan, 376 U.S. at 280.

[11] See Gertz, 418 U.S. at 339 (“[u]nder the First Amendment, there is no such thing as a false idea.”).

[12] See Allen, supra note 5, at 82.  Of course, Facebook and Twitter are not immunized against suits for content that they post on their own platforms.  Cf. Force v. Facebook, Inc., ___ F.3d ___, No. 18-397, 2019 WL 3432818, slip op. at 41 (2d Cir. July 31, 2019), (“If Facebook was a creator or developer, even ‘in part,’ of the terrorism-related content upon which plaintiffs’ claims rely, then Facebook is an ‘information content provider’ of that content and is not protected by Section 230(c)(1) immunity.”).

[13] 47 U.S.C. §230(c)(1) (2017) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).  “Interactive computer service” is defined by the act as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server”). Id. at §230(f)(2); see also Allen, supra note 5, at 82 n.100 (describing additional protections provided by the Communications Decency Act, including how Twitter falls under its definition of “interactive computer service”).

[14] See Allen, supra note 5, at 84; Pielemeier, supra note 8, at 384.

[15] 465 U.S. 770, 777 (1984); see also Calder v. Jones, 465 U.S. 783, 791 (1984) (holding that personal jurisdiction is proper over defendants who purposefully directed libelous information at the plaintiff’s home state with the intent of causing harm).

[16] Keeton, 465 U.S. at 777.

[17] See, e.g.,Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997); Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002); Tamburo v. Dworkin, 601 F.3d 693, 707 (7th Cir. 2010) (each applying traditional libel tests for personal jurisdiction to online publications, requiring the publication to be intentionally targeted towards citizens of the state). 

[18] Gordon v. Love, No. B256367, 2016 WL 374950, at *2 (Cal. Ct. App. Feb. 1, 2016). The exact language of the tweet in question was “I was fucking devastated when Rhonda J. Holmes, Esquire, of San Diego was bought off @FairNewsSpears perhaps you can get a quote.”  Id.  The tweet was deleted five to seven minutes after it was posted.  Id. at *3.  This was Love’s second time being sued for defamation over comments made on her Twitter account, although the first lawsuit resulted in a $430,000 settlement before trial. Matthew Belloni, Courtney Love to Pay $430,000 in Twitter Case, Reuters (Mar. 3, 2011),

[19] See Allen, supra note 5, at 81 n.99.

[20] Love, 2016 WL 374950, at *3.  The reason actual malice was required in the case is because Love’s attorney had gained public figure status, which was not disputed at trial. Id.

[21] See Joe Trevino, From Tweets to Twibel*: Why the Current Defamation Law Does Not Provide for Jay Cutler’s Feelings, 19 Sports Law J. 49, 61–63 (2012) (describing a series of libel lawsuits stemming from social media posts).

[22] Id. at 61.

[23] Andrew L. Wang, Twitter Apartment Mold Libel Suit Dismissed, Chi. Trib. (Jan. 22, 2010),

[24] Trevino, supra note 21, at 63. 

[25] Lauren Dugan, The AP Settles Over NBA Twitter Lawsuit, Pays $20,000 Fine, Adweek (Dec. 8, 2011),

[26] Restatement (Second) of Torts § 577A(3–4) (Am. Law Inst. 1977).

[27] Id. at § 577A cmt. b.

[28] 739 F.2d 962, 967 (4th Cir. 1984) (quoting Keeton, 465 U.S. at 777 n.8).

[29] Allen, supra note 5, at 87–88.

[30] See Lori A. Wood, Cyber-Defamation and the Single Publication Rule, 81 B.U. L. Rev. 895, 915 (2001) (calling for courts to define “republication” in the context of internet publications).

[31] See, e.g., Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002); Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 90 (2d Cir. 2003); Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1130–31 (9th Cir. 2006); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 144 (5th Cir. 2007).  But see Swafford v. Memphis Individual Prac. Ass’n, 1998 Tenn. App. LEXIS 361, at *38 (Tenn. App. 1998).

[32] See Allen, supra note 5, at 91 n.157.

[33] See Trevino, supra note 19, at 69.