Eugene Volokh's Blog, page 209

[Jonathan H. Adler] Ohio Legislator Proposes Criminalizing Planting a Flag at Midfield

Ohio Rep. Josh Williams is proposing a new law to make planting a flag at midfield after winning a football game a felony in the state of Ohio. The bill appears to have been inspired by the tussles between Ohio State and University of Michigan players after their most recent game, which Michigan won and at which a Michigan player sought to plant a Michigan flag on the OSU field.

From the ESPN report:

Ohio state Rep. Josh Williams introduced a bill Tuesday that would classify flag planting at Ohio Stadium around Buckeyes football games as a felony.

The O.H.I.O. Sportsmanship Act, authored by Williams, comes in response to Michigan's attempt to plant its flag after a Nov. 30 win at Ohio State, which set off a brawl between the teams. Police employed pepper spray to separate players and other team personnel. Ohio State University police are investigating the incident, which involved multiple law enforcement agencies and resulted in an injury to an officer.

According to Williams' bill, "No person shall plant a flagpole with a flag attached to it in the center of the football field at Ohio stadium of the Ohio State University on the day of a college football competition, whether before, during, or after the competition. Whoever violates this section is guilty of a felony of the fifth degree."

A fifth-degree felony is the least severe in Ohio and carries a penalty of six to 12 months in prison, up to a $2,500 fine and up to five years' probation.

According to Williams, the point of the bill is to prohibit conduct that could incite violence. That may be the intent, but this seems a bit much. The idea that planting a flag is tantamount to incitement is, frankly, the sort of argument one expects to hear from those who claim offensive language is inherently violent. Elite athletes, of all people, should be able to control themselves in such situations, and criminalizing expressive conduct out of concern for how others might respond seems to be enabling a heckler's veto. Are Buckeyes really not made of sterner stuff?

It seems to me there is a much easier way to prevent an opposing team from planting their flag at midfield: Win the game.

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[Eugene Volokh] French Court Finds Writer "Guilty of Denying the 1994 Rwandan Genocide"

I've long opposed Holocaust denial bans, partly because of the slippery slope / censorship envy problem: Unsurprisingly, such bans tend to lead to broader policing of historical claims, such as the French fine imposed on noted historian Bernard Lewis for his views on the Armenian genocide. N.Y. Times (Adam Nossiter) reports the latest:

The French-Cameroonian writer, Charles Onana, author of "Rwanda, the Truth about Operation Turquoise — When the Archives Speak," and the publisher, Damien Serieyx, were fined nearly $15,000 and ordered to pay more than $11,000 to three human rights group that had sued them.

Mr. Onana, who could not be immediately reached for comment, and his publisher have appealed.

The court on Monday found Mr. Onana and the publisher guilty for their "public challenge to the existence of a crime against humanity." In his book, Mr. Onana denied there had been a genocide and denied France's responsibility.

The court cited some 19 passages it said violated French law making it illegal to deny a genocide that has been officially recognized by France or international jurisdictions. Notably, Mr. Onana wrote that the "conspiracy theory of a Hutu regime that planned a 'genocide' in Rwanda constitutes one of the biggest scams of the 20th century." …

Mr. Onana, for his part, maintained in his book that there was killing on both sides, by Tutsis and Hutus, but that there was no genocide. "Certainly, Tutsis were massacred, targeted, but they were not the only ones," he wrote. In his introduction, he wrote that he was "above all trying to make a break with 'official history.'"

The French have their free speech rules, and we have ours; but incidents like this remind me why I like ours better. Claims about broad historical topics should be resolved, I think, through debate among historians, not by legislatures or courts. Among other things, when people are free to publicly disagree with the consensus of experts (historians, scientists, and more) but the consensus continues to withstand such challenges, we non-experts have some basis for confidence in that enduring consensus. But when some public disagreement becomes illegal, and the debate is therefore truncated, how can we know that any consensus after that point is trustworthy?

I appreciate that one premise of the holocaust denial laws might be that the governmental validation of a particular historical position should lead us to trust that view more, because we trust the government. But I don't think governments are particularly trustworthy on such matters.

Here, by the way, is my 2002 post about the Bernard Lewis incident; note that Lewis was a much more prominent historian than Onana, and yet even he could be punished for his historical claims:

Several years ago, prominent historian Bernard Lewis was sued in France for his comments (made in a Le Monde interview) on the Turkish killing of Armenians during World War I; he stressed that the killing happened, but argued that—unlike with the Holocaust during World War II—it was not part of a deliberate campaign of extermination by the Turks. Various plaintiffs, including the French Forum of Armenian Associations and the International League Against Racism and Antisemitism sued, claiming that his speech violated French prohibitions on the historical denial of genocide; and they won.

The invaluable research librarians at UCLA Law School have gotten me an English translation of a French court's decision, and it is as troubling as press accounts described it to be. (Note that I'm not yet sure of the source of the translation, but I found it on a site that appears to be harshly critical of Bernard Lewis, so I doubt that the translation is incorrectly Lewis-friendly.)

Though the court didn't find that Lewis made any false statements, it concluded that Lewis didn't give a balanced presentation (and this in a necessarily brief newspaper interview, not an academic work)—under this standard, even the most responsible historians could be vulnerable, especially if they are tried before courts that are hostile to their viewpoints. And though Lewis lost only 14,000 Francs, I suspect that the potential damages for future cases would be considerably greater. Here's what seems to me to be the court's key language, though you should just read the entire decision (it's not long and not very legalese) yourselves:

Whereas, even if it is in no way established that he pursued an objective foreign to his role as historian, and even if it is not disputable that he may maintain an opinion on this question different from those of the petitioning associations, the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide; consequently, he failed in his duties of objectivity and prudence by offering unqualified opinions on such a sensitive subject; and his remarks, which could unfairly rekindle the pain of the Armenian community, are tortious and justify compensation under the terms set forth hereafter.

(Note again that the Lewis statement about the lack of serious proof of the genocide referred to the supposed "lack of serious proof … of a decision and plan of the Ottoman government for extermination of the Armenian nation"; Lewis acknowledged "that the Armenians' suffering [was] a terrible human tragedy," and that many Armenians died as a result of the deportation.)

Now I say all this not because I feel competent to tell the French how to run their legal system. They've got their laws and we've got ours, and while I think I prefer ours, I don't know enough about French culture, society, or legal system to be highly confident about what works best for them.

But I repeatedly hear, mostly from law professors but also from others, calls for adapting American free speech law—and American constitutional law more broadly—to fit the European mold. America is the only Western country, the argument runs, that's so insensitive to the plight of victims, or so hospitable to racists and other bigots, or just so downright goofy in its First Amendment zealotry that it fails to punish Clearly Harmful And Valueless Speech such as Holocaust denial or racist advocacy or what have you.

The trouble with these sorts of speech restrictions, though, is that narrow, reasonable-seeming constraints—after all, what harm will it do if we suppress Nazis or anti-Semitic Holocaust deniers?—end up growing and growing. It might be censorship envy, or the influence of precedent, or a desire for equality, but what the ACLU and other "extremists" say tends to be true: You start by suppressing Communists, and then you get to Communist sympathizers, and then to fellow travelers, and then to liberals. You start by suppressing racial or sexual slurs, and then you get to hard-core pornography in the workplace, and from there to supposedly bigoted political advocacy, sexually themed humor, classical art, or religious proselytizing. And you start by going after Holocaust denial and soon enough you punish respected historians for supposedly not providing a balanced presentation—balanced, that is, in the eyes of the judge.

Cases like the one I describe provide a useful example of what happens when one tries to take a more "reasonable", less "extreme" view of free speech. And from what I've seen, it seems to me that we shouldn't be too quick to jettison our First Amendment tradition, for all its flaws, in favor of the supposedly more internationally approved, interest-balancing, and sensitive European model.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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[Eugene Volokh] Court Rejects Lawsuit Against AP Over Oct. 7 Deaths and Injuries, Premised on AP's Buying Photos from Allegedly Hamas-Connected Freelancers

From Judge Michael Moore's decision yesterday in Newman v. AP (S.D. Fla.):

Several news organizations, including the AP, reported on the October 7 Attack by publishing real time photos and articles about the conduct of Hamas militants. The Amended Complaint identifies Gaza-based photojournalists Hassan Eslaiah, Yousef Masoud, Ali Mahmud, and Hatem Ali (together, the "Freelance Photographers"), as individuals who provided photographs of the October 7 Attack that the AP ultimately published. Plaintiffs allege that the Freelance Photographers were longstanding Hamas affiliates, who "acted and continue to act as part of Hamas, furthering Hamas' goals and objectives."

To support that the Freelance Photographers were Hamas affiliates, Plaintiffs point to social media posts by one of the Freelance Photographers, Eslaiah, to suggest that he was on "friendly terms" with Hamas and its members. The Amended Complaint provides a photograph of Eslaiah posted in 2020 with then Hamas leader Yahya Sinwar, known to be the "operational mastermind" of the October 7 Attack. In the photograph, Sinwar is kissing Eslaiah on the cheek. On October 7, 2023, Eslaiah posted several photographs now removed on X, formerly known as Twitter, including one in front of an Israeli tank, stating "Live from inside the Gaza Strip settlements." Plaintiffs also cite to a video Eslaiah posted during the attack, where he states "[y]ou know, the beautiful thing about storming the settlements: the civilians, the people, they go [out] on foot and come back driving, be it a motorcycle, a scooter or a car – [one can] grab and load trophies." Additionally, Plaintiffs point out that Eslaiah did not wear a press vest, helmet, or any other press credentials. Plaintiffs aver that in light of Eslaiah's access to "the most violent and dangerous scenes of the [October 7 Attack], despite not being identifiable as a member of the press, thereby indicat[es] the degree of his entrenchment within Hamas and the trust that his fellow Hamas Terrorists placed in him."

As for the other Freelance Photographers, Plaintiffs allege that they could not have gained access to photograph the October 7 Attack without Hamas affiliations, and that the Freelance Photographers must have known about the attack in advance because they "arrived at roughly the same time as the initial Hamas terrorists who breached entry into the State of Israel," Plaintiffs also note that the Freelance Photographers' lack of press credentials or other indicia marking them as non-participants in the attack demonstrate that they were embedded within the Hamas infrastructure and were part of the Hamas Terrorists' group. In addition, Plaintiffs allege that the Freelance Photographers returned to Gaza alongside the Hamas militants.

Plaintiffs allege that the AP's publication of images by the Freelance Photographers and relationship with the Freelance Photographers contributed to the October 7 Attack. Specifically, Plaintiffs allege that the Freelance Photographers' payments and funding to Hamas "substantially contributed to the sheer mass of people that illegally infiltrated Israel," which increased the "logistical and tactical" burden on the Israeli government in responding to the attack. Moreover, the Freelance Photographers' "presence and encouragement increased the terror" felt by Israeli civilians. Plaintiffs point to the AP's payments to the Freelance Photographers as a direct monetary benefit to Hamas. They further allege that the AP's photographs helped Hamas gain public support internationally and served as a form of propaganda for Hamas.

On February 21, 2024, Plaintiffs initiated the instant action asserting claims against the AP under the Federal Anti-Terrorism Act ("ATA"), as amended by the Justice Against Sponsors of Terrorism Act ("JASTA") and two Florida state law claims. The Amended Complaint asserts six causes of action against the AP: aiding and abetting acts of international terrorism under the Federal ATA and the JASTA (Count I); conspiring in furtherance of acts of international terrorism under the Federal ATA and the JASTA (Count II); provision of material support to terrorists under the Federal ATA (Count III); provision of material support and resources to a designated foreign terrorist organization under the Federal ATA (Count IV); negligent infliction of emotional distress (Count V); and facilitating and furthering terrorism pursuant to Florida Statute § 772.13(1) (Count VI).

The court rejected plaintiffs' claims; the opinion is long, but here's an excerpt from the discussion of the aiding and abetting claim:

The U.S. Supreme Court recently provided clarification as to … aiding and abetting liability under JASTA in Twitter, Inc. v. Taamneh (2023). There, the victims of an ISIS terrorist attack brought JASTA aiding-and-abetting claims against Twitter, Google, and Facebook. The plaintiffs argued that the three companies were liable for failing to take action against ISIS from using their platforms to post recruitment and propaganda videos. The plaintiffs further alleged that Google (through its platform YouTube) was liable because it "reviewed and approved ISIS videos on YouTube as part of its revenue-sharing system and thereby shared advertising revenue with ISIS." The Court held that Plaintiffs failed to state a claim for aiding-and-abetting.

In coming to this conclusion, the Court framed two questions in its reading of the statute. The first being "what exactly does it mean to 'aid and abet'"? The Court answered this question by finding that aiding and abetting "refers to a conscious, voluntary, and culpable participation in another's wrongdoing." … The Court further explained that defendants must have "aided and abetted the act of international terrorism that injured the plaintiffs—though that requirement does not always demand a strict nexus between the alleged assistance and the terrorist act." "Aiding and abetting does not require the defendants to have known all particulars of the primary actor's plan." A defendant "can be held liable for other torts that were a 'foreseeable risk' of the intended tort." "[T]he more attenuated the nexus, the more courts should demand that plaintiffs show culpable participation through intentional aid that substantially furthered the tort."

Applying this framework in Taamneh, the Court found that defendants did not aid and abet ISIS in carrying out a terrorist attack by allowing ISIS to access their social media platforms, where they indiscriminately employed an algorithm which matched ISIS-related content to users that would likely be interested. The Supreme Court describes Defendants' conduct as "arm's length, passive, and largely indifferent" and notes that defendants point to no act of "encouraging, soliciting, or advising the commission" of the terrorist attack to adequately support an aiding and abetting claim.

In light of Taamneh's guidance, the Court now … [considers] the instant case. As to whether the AP "knowingly" assisted Hamas in carrying out the October 7 Attack, a defendant who lacks general awareness cannot be said to have knowingly assisted an FTO…. [E]ven if the AP was put on notice of potential ties between the Freelance Photographers and Hamas through social media posts, an anonymous tip, or the fact that such Freelance Photographers were present during the attack, this fails to sufficiently allege that the AP had the requisite "state of mind with respect to their actions and tortious conduct."

An independent and alternative ground for dismissal is that Plaintiffs failed to allege that the AP provided substantial assistance …. [T]he AP is alleged to have provided Hamas through the Freelance Photographers, (1) financial support, and (2) a platform to further promote the interests of Hamas. Although the Court need not focus exclusively on Plaintiffs' financial support argument, courts have considered financial assistance to terrorist organizations as "'indisputably important' to the operation of a terrorist organization, and any money provided to the organization may aid its unlawful goals." Courts also consider the culpability of the act, which is relevant because "a court might well reason that culpability for the same amount of assistance would increase with an increase in either the blameworthiness of the tortious act aided or the seriousness of the foreseeable consequences." …

In Taamneh, the social media platforms were accused of recommending videos uploaded by ISIS and sharing advertising revenues directly with ISIS. Here, the AP's purchase of photographs of the October 7 Attack is significantly more attenuated than directly promoting an FTO's content. Nor have Plaintiffs pleaded that the AP's purchase resulted in a significant amount of money—or any amount of money—indirectly flowing to Hamas. Plaintiffs do not plausibly allege that Hamas received any financial support from the AP or that the AP knew that Hamas would likely receive any funds from the purchase of such photographs. The cases upon which Plaintiffs rely include specific allegations regarding the amount of money and other assistance that went to terrorist groups. Accordingly, Plaintiffs' conclusory allegations are inadequate to establish that any amount of money or assistance from the AP went to Hamas in carrying out its terrorist attacks….

[T]he defendant's relation to the tortious actor[ is also] "useful for determining the defendant's capacity to assist." Even assuming the AP had knowledge of the Freelance Photographers' ties to Hamas, the Amended Complaint does not allege that the Freelance Photographers participated in the tortious conduct, nor that there is a direct link between the AP and Hamas….

[Moreover, i]n Taamneh, the Supreme Court focused on the defendants' "undisputed lack of intent to support ISIS." Here, the AP's purchase of certain photographs, similar to several other media organizations, is a far cry from an active business partnership. Plaintiffs also do not allege any "arms-length relationship" between the AP and the Hamas-affiliates. Plaintiffs thus fail to provide any allegation that defendant's commercial activity evidenced an "intention to participate in an ongoing illicit enterprise." Halberstam, 705 F.2d at 484.

Finally, [courts must consider] the defendant's duration of assistance. This factor assesses the "quality and extent of [the AP's] relationship and probably influences the amount of aid provided as well." … [E]ven assuming the AP had a series of transactions with the Freelance Photographers over a period of several years, Plaintiffs do not suggest that the length of such relationship aided terrorism, outside of the conclusory allegations that the AP was a direct funding source for Hamas. This differs substantially from Zobay where the plaintiffs alleged that the defendants were in an investment relationship lasting from 2005 to 2020 and remained in a joint venture with the terrorist organization even after it was designated as an FTO….

The court went on to likewise reject the other claims (conspiracy, provision of material support for terrorism, and negligent infliction of emotional distress). In the process, it disagreed with a Seventh Circuit case, Boim v. Holy Land Found. for Relief & Dev. (7th Cir. 2008), as to provision of material support:

Whether the AP's alleged payments to the Freelance Photographers may be considered an act of international terrorism, however, requires a separate analysis. Plaintiffs largely rely on Boim, where the plaintiffs were the parents of an American-Israeli teenager shot at a bus stop in Israel by a Hamas terrorist. The defendants either gave money to Hamas or made donations to another defendant, who then channeled the donations to Hamas. The plaintiffs, like in this case, brought claims that the defendants provided material support in violation of § 2339A. The Seventh Circuit concluded that giving money to terrorist groups is "like giving a loaded gun to a child," and, as such, constitutes an "act dangerous to human life," within the meaning of § 2331(1)(A). It also found that donations made to Hamas would violate the statute. Here, Plaintiffs argue that, as in Boim, they allege in their Complaint that the AP knowingly gave money to Hamas, with the knowledge that Hamas would use such funds to inflict more terror.

The Seventh Circuit in Boim imposes sweeping liability, treating nearly all financial support provided to a terrorist organization and its affiliates as support for terrorism, regardless of whether the money is even given to the terrorist organization itself. See Boim ("This sweeping rule of liability leaves no role for the factfinder to distinguish between those individuals and organizations who directly and purposely finance terrorism from those who are many steps removed from terrorist activity and whose aid has, at most, an indirect, uncertain, and unintended effect on terrorist activity.") (Rovner, J., dissenting in part). Judge Rovner's dissent in Boim explains that treating all those who provide money and other aid to a terrorist organization as primarily liable "poses a genuine threat to First Amendment freedoms." …

Overall, the Court considers Judge Rovner's dissent more compelling than the majority, given the possible sweeping liability the statute might impose. Regardless of Boim's far-reaching standard, the exchange of payments for photographs regarding issues of public concern appears wholly distinguishable from a standing financial relationship, or donations that "appear to be intended … to intimidate or coerce a civilian population" or "affect the conduct of a government by … assassination," within the meaning of § 2331(1). A donation connotes an act of support, whereas a payment in exchange for a product is more akin to an arms-length transaction. And as the Court has already discussed, Plaintiffs have not pleaded that the AP's purchase resulted in a significant amount of money—or any amount of money—indirectly flowing to Hamas. The Amended Complaint merely alleges that the Freelance Photographers recorded footage and took photographs "with the expectation that they would be continuously paid by AP."

Accordingly, the Court finds that the AP's conduct cannot be considered an act of international terrorism….

Because it rejected the claims on statutory grounds, the court didn't have to discuss in more detail the AP's First Amendment defense.

Charles David Tobin, Elizabeth Seidlin-Bernstein, and R. Stephen Stigall (Ballard Spahr LLP) represent the AP. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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[Eugene Volokh] The Takedown Requests Just Keep on Coming

As I wrote Oct. 28,

Kelly Hyman is a lawyer, frequent FoxNews.com contributor, and a media and Twitter commentator in this year's presidential campaign. She had also (in Hyman v. Daoud) sued her father, a disgraced former Miami Beach mayor, over a real estate transaction. And, for several years, there have been attempts to vanish from the Internet various materials related to that dispute—including attempts to vanish news stories about it, including my own articles.

On Oct. 17, I got an e-mail related to the latest such attempt: …

In that post, I noted that the then-latest attempt was seemingly backed by a Mar. 13, 2024 court order that ordered the removal of various items, including my articles. But, as I noted later on Oct. 28, the court vacated that Mar. 13 order (in response to Marc Randazza's motion on my behalf), at least as applied to anyone other than Daoud, the defendant in that case.

Well, Dec. 3 and Dec. 4, Google was sent two [UPDATE: three] deindexing requests that dealt with articles related to Hyman v. Daoud. Both attached the Mar. 13 order, which had been largely vacated by then, as a supporting document, without noting the Oct. 28 vacating order. One deindexing request targeted 40 articles, including several of mine, as well as several from the Miami Herald, CBS News, and more:

https://reason.com/volokh/2020/11/24/...
https://reason.com/volokh/2020/11/24/...
https://reason.com/volokh/2023/12/14/...
https://reason.com/volokh/2023/12/14/...
https://reason.com/volokh/2023/12/14/...

Another Attempt to Vanish My Posts About Kelly Hyman v. Alex Daoud—Seemingly Backed by Court Order

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The other deindexing request targeted 10 of those pages, including three of mine. [UPDATE: There was also a third deindexing request, which targeted 8 of those pages, including three of mine; it was also submitted Dec. 4, but was just posted on Lumen today, Dec. 11.] As best I can tell, Google didn't act on either request. (An earlier request, sent directly to CBS, may have gotten the local CBS affiliate to remove its article on the matter; I'm trying to look into that.) Certainly all the attempts to deindex my articles about the matter have failed to get those articles hidden or removed. Indeed, they have just led to further articles about the deindexing attempts.

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[Eugene Volokh] "A Lawsuit Is a Fruit Tree Planted in a Lawyer's Garden"

The earliest reference I could find in a case is State of Illinois v. Harper & Row Publishers, Inc. (1972), but I found a 1944 newspaper reference as well, so it was known even then. My colleague Paola Sapienza confirms that it is indeed an Italian proverb, "Una causa è un albero da frutto piantato nel giardino di un avvocato."

Paola also pointed to another proverb, "Causa che pende, causa che rende." That translates to "A pending case makes money [for the lawyer]," but somewhat less precisely (and changing the focus from the lawyer to the client), as

A pending case is a spending case.

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[Eugene Volokh] Tuesday Media Recommendations: Science Fiction or Fantasy TV Shows

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[Eugene Volokh] Eleventh Circuit Rejects Federal Child Porn/Sex Trafficking Claims Against Video Chat Service Omegle

From M.H. v. Omegle.com LLC, decided yesterday by the Eleventh Circuit (Judges Andrew Brasher and Ed Carnes, joined as to the sex trafficking claim by Judge Barbara Lagoa):

The facts of this appeal underscore that the internet in general and social media in particular pose grave risks to children. When C.H. was eleven years old, a stranger connected with her through Omegle.com, an online social media platform that places people in video chatrooms. The stranger then tricked and threatened C.H. into making child pornography. Unfortunately, this problem is not unique to Omegle.com. Our precedents reflect that child predators use many other online platforms to find and exploit their victims.

Through her parents, C.H. sued Omegle.com LLC. She alleged that Omegle.com violated 18 U.S.C. § 2255, known as "Masha's Law," by knowingly possessing child pornography. She also sued Omegle.com for violating the Trafficking Victims Protection Reauthorization Act, which forbids knowingly benefitting from participation in a sex trafficking venture. The district court dismissed her claims under section 230 of the Communications Decency Act of 1996. That section provides that for purposes of civil liability, "[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by" a user.

C.H.'s appeal presents two questions of statutory interpretation. First, we must decide whether she stated a claim under Masha's Law for the knowing possession of child pornography. We conclude that she has not. Second, we must decide whether C.H. can bring her sex trafficking claim because of an exception to section 230 under the Fight Online Sex Trafficking Act ("FOSTA"). We believe she cannot. The FOSTA exception applies only to conduct that meets the standard for criminal liability for sex trafficking. Here, C.H. does not plausibly allege that Omegle.com had actual knowledge that it benefited from sex trafficking, which is the standard for criminal liability. Accordingly, we affirm the district court….

Here's the core of the court's analysis rejecting the child pornography claims:

The complaint fulsomely recounts John Doe's conduct in creating, accessing, and distributing child pornography, but it does not make comparable factual allegations about Omegle.com. Instead, C.H.'s parents allege that Omegle.com allowed its "website to become a means of online child exploitation despite the risk to children like C.H." C.H.'s parents allege that, because child exploitation on Omegle.com is so pervasive, the company knew that people like John Doe would exploit its technology to connect with minors for the purposes of recording images of child pornography. Despite this knowledge, Omegle.com "paired C.H. with a stranger knowing that C.H. was a minor child at risk of becoming a victim of child pornography."

These are disturbing allegations, but they are insufficient to state a claim against Omegle.com for possessing child pornography. First, the operative complaint does not allege that Omegle.com ever possessed or accessed the images that John Doe recorded. In fact, the complaint does not allege that Omegle.com even had the ability to access its user's recordings in general or John Doe's recordings of C.H. in particular. Second, and relatedly, there are no allegations that would support the conclusion that Omegle.com knowingly possessed or accessed John Doe's recording knowing it was child pornography. We have held that liability under section 2252A requires a finding that the defendant knowingly possessed sexually explicit material and had knowledge that the subject of the material was a minor. But there are no factual allegations that suggest that Omegle.com knew it possessed John Doe's recording of C.H. or knew anything about the content of that recording.

C.H.'s parents rely on Doe #1 v. MG Freesites, LTD (N.D. Ala. 2022), in which a district court denied a motion to dismiss a claim under Masha's Law. But we think comparing this case to MG Freesites underscores that C.H.'s parents have not sufficiently alleged possession or knowledge. There, the plaintiffs alleged that users "uploaded" child pornography videos to a website that itself "generated 'thumbnail' preview images from those videos," which allowed users to view the videos on the website. As the district court explained, the plaintiffs also alleged that the defendants "actively control which videos are posted," "review every video," "retitle videos indicating [child pornography] but leave the videos available for distribution," and "create and suggest tags indicating [child pornography] for uploaders to use." C.H.'s parents have not made similar allegations that Omegle.com hosted, maintained, reviewed, distributed, made available, modified, or accessed the screenshots that John Doe created of C.H. or any similar videos or pictures….

And here's the core of the court's analysis rejecting the sex trafficking claim:

In 2018, Congress passed FOSTA to provide relief for sex trafficking victims and increase the responsibility of online intermediaries by creating new federal crimes and new enforcement mechanisms. One innovation of FOSTA is that it amended section 230 to except sex trafficking claims from section 230 immunity.

When Congress enacted FOSTA, sex trafficking was already a federal crime under section 1591 of the Trafficking Victims Protection Reauthorization Act ("TVPRA"), and victims could pursue civil remedies under section 1595. But courts had held that sex trafficking victims could not seek civil relief against online platforms under section 230, even though they could against other defendants, such as hotels. FOSTA made clear that section 230 does not preclude civil actions by sex trafficking victims under section 1595 or criminal prosecution under section 1591.

Importantly, the TVPRA's criminal provision, section 1591, is different from the civil provision, section 1595. The criminal provision of the TVPRA makes it a crime to "knowingly" benefit from "participation in a venture," which it defines as "knowingly assisting, supporting, or facilitating" a child to engage in a commercial sex act. 18 U.S.C. § 1591(a), (e). The civil provision, on the other hand, can be satisfied by an element of constructive knowledge—that a defendant knowingly benefited from "participation in a venture which that person knew or should have known" was engaged in sex trafficking. 021) (explaining the difference between the criminal provision and the civil provision).

The FOSTA exception to section 230 incorporates both the civil and criminal provisions of the TVPRA. It says that nothing in section 230 "shall be construed to impair or limit any claim in a civil action brought under section 1595 if the conduct underlying the claim constitutes a violation of section 1591 of that statute." The question before us is whether the latter phrase—"if the conduct underlying the claim constitutes a violation of section 1591"—imposes on claims under the FOSTA exception the actual knowledge standard from section 1591, rather than the constructive knowledge standard from section 1595.

We conclude it does…. The phrase "constitutes a violation of section 1591" is not ambiguous. The most straightforward reading is that FOSTA permits civil sex trafficking claims against online platforms only when a platform's conduct violates the criminal TVPRA provision. The criminal TVPRA provision requires that the defendant benefited from participating in a venture that it knew was engaging in sex trafficking. Therefore, the language of the FOSTA exception itself establishes that a civil TVPRA claim can avoid section 230 immunity only when the plaintiff alleges facts that the defendant had actual knowledge, not merely constructive knowledge, of sex trafficking….

When the words of a statute are unambiguous, our analysis ends with the text itself. But for those who find legislative history useful, we note that the drafting history of FOSTA unequivocally supports our conclusion that it incorporates the criminal liability standard from section 1591….

FOSTA's imposition of an actual knowledge standard places a higher burden on sex trafficking victims seeking civil relief against interactive computer services than those seeking relief against other kinds of defendants. But section 230 immunity presumes that we should treat interactive computer services differently than other companies. In any event, if the FOSTA exception to section 230 is too narrow to accomplish its goal, "this is a flaw, or perhaps a feature, that Congress wrote into the statute, and is not one we can rewrite by judicial fiat." …

The second amended complaint alleges Omegle.com "knowingly benefited from participation in what it knew or should have known was a sex trafficking venture in violation of 18 U.S.C. §§ 1591(a)(2) and 1595(a)" and "knowingly benefited from, and/or received value for participation in the venture in which Defendant knew C.H. would be forced to engage in commercial sexual acts while under the age of 18 years old." These accusations state the elements for sex trafficking under section 1595 and may also be construed to state a claim for criminal sex trafficking under 1591. But they are not factual allegations plausibly suggesting that Omegle.com had actual knowledge of C.H. or her interaction with John Doe….

Instead of knowledge, the second amended complaint alleges that Omegle.com was negligent. Omegle.com allegedly knows that predators use its services, which allow them to target children for sexual abuse and exploitation. Nonetheless, Omegle.com allegedly enables individuals to communicate with complete anonymity, does not require age verification or parental consent for minor users, and does not sufficiently protect users' data. These allegations taken as true may sufficiently allege that Omegle.com should have known (i.e., constructive knowledge) that John Doe would use its website to victimize C.H. But the law demands more than constructive knowledge….

Judge Barbara Lagoa dissented as to the child pornography claim:

[T]his Court held in Tilton v. Playboy Entertainment Group, Inc. (11th Cir. 2009) that liability under § 2252A(a) requires a finding that the defendant knowingly possessed sexually explicit material and had knowledge of the age of the subject. But Tilton "recognized that the knowledge element of [§ 2252A(a)] can be proved by demonstrating either actual knowledge or deliberate ignorance." "Knowledge through deliberate indifference occurs where a party acts 'with an awareness of the high probability of the existence of the fact in question.'" This "deliberate indifference" rule exists to prevent a party who has had his "suspicion aroused but then deliberately omits to make further enquiries[ ] because he wishes to remain in ignorance" from skirting liability.

In this case, C.H.'s parents alleged that Omegle knew that its website was used by children and knew that it had been misused by sexual predators to groom and sexually abuse children. C.H.'s parents further alleged that "[t]he use of the Omegle.com website for advertising, creating, posting, and sharing child sex abuse material was so pervasive … that it cannot be said that such conduct was so unforeseen so as to prevent the Omegle defendants from being vicariously liable for such conduct." And they alleged that the myriad "allegations involving Omegle by those who target children for sexual abuse, pornography, and exploitation, the resulting media coverage, and the arrests and convictions of predators using Omegle.com to exploit victims" all indicate "that Omegle has full knowledge of the extent to which its website is used to sexually target, groom, exploit, and abuse children like C.H." According to C.H.'s parents, Omegle actively advertises its site to children but "does nothing to properly verify users' ages or prevent the use of Omegle.com by minors." In my view, these allegations could have been sufficient for the court to find that C.H.'s parents stated a claim under § 2252A(a) on a theory of deliberate ignorance….

Drawing all reasonable inferences in favor of C.H.'s parents here, the district court could have concluded that the complaint does enough to state a plausible claim for relief. Specifically, the plaintiffs alleged (and we accept as true) that Omegle knows that its website is frequented by minors. They also alleged that the use of Omegle.com for child sex abuse material is pervasive, and that Omegle has been contacted by individuals representing exploited children or by law enforcement investigating crimes committed in these cases. A district court could find, based on these allegations, that Omegle was deliberately ignorant to the fact that John Doe's recording of C.H. contained sexually explicit material and deliberately ignorant as to C.H.'s minor status.

The majority reasons that the plaintiffs' allegations are insufficient because the second amended complaint did not allege that Omegle had the ability to access its user's recordings in general or John Doe's recordings of C.H. in particular. I think this asks too much. Not only does a complaint attacked by a Rule 12(b)(6) motion to dismiss not need "detailed factual allegations," but it needs only "enough fact to raise a reasonable expectation that discovery will reveal evidence" of the defendant's liability.

In other words, at the pleading stage, we cannot demand that a plaintiff provide detailed factual matter that may or may not have yet been revealed through the process of discovery. It may be that, ultimately, the plaintiffs in this case would not have been able to prevail on a theory of deliberate indifference. But a "well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely."

Here, the district court could have concluded that C.H.'s parents plausibly alleged knowledge for purposes of the predicate offense. At the very least, I would leave it to the district court to determine whether the plaintiffs' allegations satisfied the knowledge requirement of § 2252A(a)(5)(B) based on a deliberate-indifference standard….

Kimberlee Gunning (Focal PLLC) argued on behalf of Omegle; also on the briefs were Stacia N. Lay and Venkat Balasubramani (FOCAL PLLC), as well as James McGuire and Daniela Abratt (Thomas & LoCicero PLLC).

For more on Omegle, which shut down last years, and the lawsuits against it, see this Lawfare article by Quinta Jurecic and Katherine Pompilio.

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[Jonathan H. Adler] Justice Jackson Authors First Decision of OT2024

This morning the Supreme Court issued its first signed decision in an argued case for October Term 2024. (The Court previously DIGged another case.) This restores the tradition of deciding at least some cases in the fall. Last year, the Court's first decision in an argued case did not appear until January.

Justice Ketanji Brown Jackson wrote for a unanimous Court in Bouarfa v. Mayorkas, which considered whether a petitioner may obtain judicial review when an approved visa petition is revoked due to a determination by the government that the petitioner  was in a sham marriage.

Here is how Justice Jackson summarizes the decision:

A common feature of our Nation's complex system of lawful immigration is mandatory statutory rules paired with discretionary exceptions. Executive Branch agencies implement both. Whether any given agency decision is mandatory or discretionary matters, because Congress has limited judicial review of many discretionary determinations. See 66 Stat. 208, as amended, 8 U. S. C. §1252(a)(2)(B). This case involves the Secretary of Homeland Security's decision to revoke initial approval of a visa petition that Amina Bouarfa, a U. S. citizen, filed on behalf of her noncitizen spouse

The Secretary points to 8 U. S. C. §1155 as the source of the agency's revocation authority; that provision states that the Secretary "may, at any time," revoke approval of a visa petition "for what he deems to be good and sufficient cause." The issue we address today is whether revocation under §1155 qualifies as a decision "in the discretion of " the Secretary such that it falls within the purview of a separate statute—§1252(a)(2)(B)(ii)—that strips federal courts of jurisdiction to review certain discretionary actions. We hold that it does.

It is not surprising that the first opinion of the term is unanimous, as unanimity can produce a smoother and quicker opinion drafting process. It is also worth remembering that, as the junior-most justice, Justice Jackson is most likely to be assigned unanimous decisions in cases that the justices believe present straight-forward and relatively easily resolved questions.

There is no word yet on when the Court may issue additional opinions.

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[Keith E. Whittington] The Academic Freedom Podcast is Back!

After a bit of a hiatus, The Academic Freedom Podcast is back and will hopefully release on a more regular schedule in coming months. It is still sponsored by the Academic Freedom Alliance and can be found on the same feed and at the same webpage. However, it is also now co-sponsored by the new Center for Academic Freedom and Free Speech at Yale Law School and the episodes can also be found there.

The description of the new episode:

The AFA's Keith Whittington interviews Cary Nelson, the Jubiliee Professor of Liberal Arts & Sciences Emeritus at the University of Illinois at Urbana-Champaign. He served for many years in the leadership of the American Association of University Professors, including terms at its president from 2006 to 2012. He is currently chair of a new organization, the Alliance for Academic Freedom (not to be confused with the Academic Freedom Alliance). In addition to his work on American poetry, he is the author of several books on higher education, including Manifesto of a Tenured Radical from 1997 and No University is an Island from 2010. His latest book is the just published Hate Speech and Academic Freedom: The Antisemitic Assault on Basic Principles.

Subscribe to the The Academic Freedom Podcast through your favorite podcast platform so that you don't miss an episode.

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[Keith E. Whittington] Webinar Today on My New Book on the Impeachment Power

I will be doing a webinar today at noon (eastern) with Gregg Nunziata at the Society for the Rule of Law. You can register for the virtual event at here.

We will be discussing my latest book, The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool, just published by Princeton University Press. From PUP's description of the book.

Drawing insights from American and British history, congressional practice, and the language of the Constitution itself, Whittington shows how impeachment is a tool for checking abuses of elective office and defending constitutional norms. While we have come to associate impeachment with the presidency, it can be used to remedy gross misconduct by an array of officers of the federal government. Whittington cautions against abusing this immense and consequential power to settle political scores, demonstrating how it undermines the independence of the branches and makes Congress the seat of political power.

From the blurbs:

"A truly exceptional contribution to the literature on impeachment. Whittington shows how impeachment is indeed about politics, but it must be a high constitutional politics that calls on elected officials to exercise the responsible judgment on which the health of democratic institutions ultimately depends. There is no doubt that this indispensable treatment of the subject will, as it should, find a wide audience in the nation's capital and beyond."—Bob Bauer, author of The Unraveling: Reflections on Politics without Ethics and Democracy in Crisis

"As presidential impeachments descend to the realm of normal politics, many Americans are asking what impeachments are really for and how they work. This is the perfect book to answer those questions: nonpartisan, historically informed, reliable, and readable. Keith Whittington has done the country a favor."—Michael W. McConnell, author of The President Who Would Not Be King: Executive Power under the Constitution

You can buy a copy for yourself -- including in audiobook form! -- right now. You can also find an earlier conversation about the book and the impeachment power with Harvard Law School's Jack Goldsmith at the Lawfare Podcast here.

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