Tuesday, March 05, 2019

FOSTA plaintiffs challenge dismissal of lawsuit, make interesting argument about standing to sue

Electronic Frontier Foundation, in a post on March 1 by Karen Gullo and David Greene, reports that the plaintiffs (Woodhull et al) are trying to reinstate their lawsuit challenging FOSTA’s constitutionality, link here.
As reported before, the federal judge in Washington who heard the first arguments for the case in July dismissed the case because he argued, with some conviction, that there was practically no chance that any activities of the plaintiffs could run afoul of the law or even create a credible threat of litigation, so the plaintiffs lacked standing to sue. 

EFF argues that standing decisions must be based on the plaintiffs’ interpretation of laws, not a judge’s, which is normally likely to narrower and less imaginative or speculative.  That is to say, if John Grisham (or I, for that matter) could write a novel about a fictitious case with the law and sell the book and movie, the plaintiffs have standing. 

EFF still points out that the law tends to put at risk speakers who might be seen as “facilitating” or encouraging prostitution, as compared to the actual customers and real world pimps. Recent articles have described the intricate world of trafficking, especially in Florida, after the arrest of Robert Kraft merely for attempted to buy prostitution. 

But many sites have self-censored, and many online activities related to dating and hookups are no longer available.  No great loss, some will say , if it makes minors or young adults safer. We all sacrifice.  But the First Amendment is not based on a sloppy idea of the common good, although the social Marxists seem to be getting too much traction.  In Europe the social harmony is a more explicit expectation. 

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