JANE DOES, No. 1-6; JOHN DOES, No. 2, 3, and 5, on behalf of themselves and all others similarly situated v. REDDIT, INC.
No. 21-56293
United States Court of Appeals for the Ninth Circuit
October 24, 2022
D.C. No. 8:21-cv-00768-JVS-KES
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Argued and Submitted August 29, 2022 Pasadena, California
BEFORE: MILAN D. SMITH, JR. and RYAN D. NELSON, CIRCUIT JUDGES, and GERSHWIN A. DRAIN,* DISTRICT JUDGE.
Opinion by Judge Milan D. Smith, Jr.; Partial Concurrence by Judge R. Nelson
SUMMARY**
Communications Decency Act
Affirming the district court‘s dismissal of an action under the federal civil sex trafficking statute,
Users of Reddit, a social media platform, posted and circulated sexually explicit images and videos of minors online. The victims, or their parents, sued Reddit pursuant to
The panel held that Reddit, an “interactive computer services” provider, generally enjoys immunity from liability for user-posted content under
In Section II.A of its opinion, the panel held that the plain text of FOSTA, as well as precedent interpreting a similar immunity exception under the Foreign Sovereign Immunities Act, established that the availability of FOSTA‘s immunity exception is contingent upon a plaintiff proving that a defendant-website‘s own conduct—rather than its users’ conduct—resulted in a violation of
The panel concluded that plaintiffs did not allege that Reddit knowingly participated in or benefitted from a sex trafficking venture, and they therefore failed to state a sex trafficking claim.
Concurring in part, Judge R. Nelson joined the majority opinion except those portions of Section II.C. that discussed the legislative history of FOSTA. Judge R. Nelson wrote that the panel need not and should not consider the legislative history since FOSTA‘s text was clear.
COUNSEL
Krysta K. Pachman (argued), Davida Brook, and Halley W. Josephs, Susman Godfrey L.L.P., Los Angeles, California; Arun Subramanian, Tamar E. Lusztig, and Amy Gregory, Susman Godfrey L.L.P., New York, New York; Steve Cohen and Raphael Janove, Pollock Cohen LLP, New York, New York; for Plaintiffs-Appellants.
Theane Evangelis (argued), Michael H. Dore, Bradley J. Hamburger, and Matt A. Getz, Gibson Dunn & Crutcher LLP, Los Angeles, California; Kristin A. Linsley and Matthew N. Ball, Gibson Dunn & Crutcher LLP, San Francisco, California; for Defendant-Appellee.
Andrew J. Pincus, Mayer Brown LLP, Washington, D.C.; Avi M. Kupfer, Mayer Brown LLP, Chicago, Illinois; for Amici Curiae Chamber of Progress and Information Technology and Innovation Foundation.
Marci A. Hamilton, Alice Bohn, and Jessica Schidlow, CHILD USA, Philadelphia, Pennsylvania; Andrew N. Chang, Esner Chang & Boyer, Pasadena, California; for Amicus Curiae Child USA.
M. SMITH, Circuit Judge:
Users of the social media platform Reddit posted and circulated sexually explicit images and videos of minors online. In response, the victims, or their parents, sued Reddit
Because Reddit is an “interactive computer services” provider, it generally enjoys immunity from liability for user-posted content under
FACTUAL AND PROCEDURAL BACKGROUND
Reddit is a social media platform that allows users to publicly post content. It is organized by small, searchable forums devoted to specific topics, called subreddits. Reddit users create and moderate each subreddit, dictating the type of content users can post. In turn, Reddit employees can remove moderators, content, or entire subreddits that do not conform to Reddit policies.
The plaintiffs in this case are the parents of minors, and one former minor, who have had sexually explicit images and videos of them posted to Reddit. Each plaintiff tells a similar story: after discovering explicit images or videos of their children (or themselves) posted to one or more subreddits, they immediately reported the content to the subreddit moderators and to Reddit employees. In response, Reddit sometimes—though not always—removed the content, only for it to be reposted shortly afterward. This cycle repeated again and again across different subreddits. Collectively, the plaintiffs contacted Reddit hundreds of times to report the explicit posts.
The plaintiffs allege that the presence of child pornography on Reddit is blatant, but Reddit has done little to remove the unlawful content or prevent it from being posted, because it drives user traffic and revenue. As of April 2021, when this suit was filed, Reddit hosted many subreddits that openly and explicitly marketed themselves as fora for child pornography, with names like /r/BestofYoungNSFW, r/teensdirtie, /r/TeenBeauties, and /r/YoungGirlsGoneWild. Users publicly “trade” and solicit child pornography on these pages, and advocacy groups and the press have repeatedly reported this activity to Reddit.
Plaintiffs allege that Reddit earns substantial advertising revenue from subreddits that feature child pornography because they generate controversy and
The plaintiffs further contend that, because it enjoys the revenue generated by child pornography, Reddit has taken little action to block it from the platform. The plaintiffs allege that Reddit does not adequately train its moderators to screen and remove unlawful content and that some moderators post child pornography themselves. Moreover, Reddit has not implemented basic security measures, such as age verification or IP-address tracking to ban repeat offenders, and it delayed adoption of automated image-recognition technologies like “PhotoDNA,” which can detect child pornography and prevent it from being posted.
Based on the foregoing, the plaintiffs filed a class-action lawsuit against Reddit pursuant to the federal civil sex trafficking statute,
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to
ANALYSIS
I
At issue in this appeal is the scope of FOSTA‘s exception to section 230 immunity for civil child sex trafficking claims. The answer to the question involves several interrelated statutory provisions. To begin, pursuant to
In 2018, Congress amended section 230 by passing FOSTA.
In turn, this provision of FOSTA incorporates two sections of the Trafficking Victims
Section 1591, on the other hand, is the federal criminal child sex trafficking statute. Like section 1595, section 1591 covers both perpetrators and beneficiaries of trafficking.
In sum: websites are generally immune from liability for user-posted content, but that immunity does not cover civil child sex trafficking claims if the “conduct underlying the claim” violates
II
Both parties agree that section 230 immunity applies to the claims against Reddit. Reddit is an “interactive computer service” provider as defined in
The parties dispute whose conduct must have violated
A
Both parties to the appeal claim that the text of FOSTA is unambiguous. Thus, we must first “determine whether the language is clear and unambiguous, and if so, apply it as written.” Thrifty Oil Co. v. Bank of Am. Nat. Tr. & Sav. Ass‘n, 322 F.3d 1039, 1057 (9th Cir. 2003). Accordingly, we commence our analysis by considering the plain text of the statute. Ross v. Blake, 578 U.S. 632, 638 (2016). Doing so, we conclude that the plain text of FOSTA and precedent interpreting a similar immunity exception establishes that a website can only be held liable if its own conduct—not a third party‘s—violates
We agree with Reddit that “underlying” and “based upon” are analogous, so Sachs’ interpretation is instructive. See Underlying, Merriam-Webster‘s Collegiate Dictionary (11th ed. 2020) (“underlying” means “basic” or “foundational“). Granted, the “gravamen” inquiry in Sachs was fact-bound: the Court considered the totality of plaintiff‘s allegations and identified those most central to her lawsuit. Id. at 35-36. In contrast, this appeal requires us to make a binary determination as a matter of law. But the basic thrust of Sachs—that a claim is “based upon” its most important components, or in other words, the facts “underlying” a claim are those most important to proving the claim—is commonsense, and has logical import here.
In a sex trafficking beneficiary suit against a defendant-website, the most important component is the defendant-website‘s own conduct—its “participation in the venture.” See
The structure of the plaintiffs’ complaint confirms how central Reddit‘s conduct is to their case. Although the plaintiffs take the position that the conduct “underlying” their claim is the conduct of the Reddit users who posted the offending images and videos, very little of their complaint describes the trafficking conduct itself. Rather, the complaint focuses on the facts critical to Reddit‘s liability—the ways that Reddit makes money from permitting child
B
To the extent doubt remains about the meaning of
Alongside
Because subsections (B) and (C) authorize criminal prosecutions, there is good reason to think that “the conduct underlying the charge” as used in (B) and (C) refers only to the defendant‘s own conduct. Reading criminal statutes, we “presume[] that Congress did not intend to ‘dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.‘” United States v. Collazo, 984 F.3d 1308, 1324 (9th Cir. 2021) (quoting Staples v. United States, 511 U.S. 600, 605 (1994)). Applying this principle here, we presume subsection (B) permits states to prosecute websites for trafficking only if the defendant “knowingly” facilitated trafficking, in violation of
C
Although we conclude that the language and structure of the statute resolves its meaning, FOSTA‘s original legislative proponents’ understanding about how FOSTA would be interpreted and applied once several amendments had been made to their original legislation decidedly supports Reddit‘s interpretation.
In 1996, Congress passed section 230 to promote development of the internet‘s “vibrant and competitive free market” and “diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”
Although section 230 as originally enacted did not immunize websites like Backpage.com from federal criminal sex trafficking laws, see
Congress passed FOSTA in 2018 to address these issues. The purpose of the bill was “to give survivors their day in court ... [and] open avenues of prosecution to law enforcement where they are currently roadblocked.” 164 Cong. Rec. S1851 (daily ed. March 21, 2018) (statement of Sen. Blumenthal); see 164 Cong. Rec. H1291 (daily ed. Feb. 27, 2018) (statement of Rep. Jackson Lee) (noting that the bill would allow victims to hold accountable “online ad services and websites that facilitate or allow sex trafficking“). As first introduced in the House, FOSTA simply stated that section 230 did not “impair the enforcement of, or limit availability of victim restitution or civil remedies under ... civil laws relating to sexual exploitation of children or sex trafficking.” H.R. 1865, 115th Cong. § 3 (Apr. 3, 2017). S. 1693, 115th Cong. § 3 (Aug. 1, 2017). This version of FOSTA would have created an immunity exception for all section 1595 claims against websites.
Opponents of the bill, however, were concerned that it would “bring a deluge of frivolous litigation targeting legitimate, law-abiding intermediaries” because it was “unbounded by any actual knowledge” requirement. The Stop Enabling Sex Traffickers Act of 2017: Hearing on S. 1693 Before the S. Comm. on Com., Sci. & Transp., 115th Cong. 35 (2017) (statement of Abigail Slater, General Counsel, Internet Association). These opponents suggested amendments to require “a clear sense of knowing,” as to “not damage those who are truly trying to grow and innovate based on that protection they get from lawsuits.”
In response, the Senate altered the bill to its current form to “eliminate section 230 as a defense for websites that knowingly facilitate sex trafficking.” S. Rep. No. 115-199, at 2 (2018) (emphasis added). As reintroduced, the bill‘s “knowing standard” was intended to create a “high bar” for liability. The Stop Enabling Sex Traffickers Act of 2017, Hearing on S. 1693 Before the Comm. on Commerce, Sci., and Transp., 115 Cong. 9 (2017). Indeed, Representative Ann Wagner, the House bill‘s original sponsor, complained that the new version so dramatically “narrowed” the immunity exception and that “the ‘knowingly’ mens rea standard ... w[ould] not provide operational recourse to justice for victims across the country and thus may not actually prevent future victimization.” The Latest Developments in Combating Online Sex Trafficking: Hearing Before the Subcomm. on Commc‘ns & Tech. of the H.
On this record, it is clear that FOSTA requires that a defendant-website violate the criminal statute by directly sex trafficking or, with actual knowledge, “assisting, supporting, or facilitating” trafficking, for the immunity exception to apply. We agree with Representative Wagner that, as enacted,
III
Having concluded that
We agree with the reasoning of other courts to address the issue that, to hold a defendant criminally liable as a beneficiary of sex trafficking, the defendant must have actually “engaged in some aspect of the sex trafficking.” See United States v. Afyare, 632 F. App‘x 272, 286 (6th Cir. 2016); Noble v. Weinstein, 335 F. Supp. 3d 504, 524 (S.D.N.Y. 2018) (a plaintiff must allege some “specific conduct [by the defendant] that furthered the sex trafficking venture ... undertaken with knowledge” of the venture). To run afoul of
In this case, the plaintiffs have not alleged that Reddit knowingly participated in or benefitted from a sex trafficking venture. They allege that Reddit provides a platform where it is easy to share child pornography, highlights subreddits that feature child pornography to sell advertising on those pages, allows users who share child pornography to serve as subreddit moderators, and fails to remove child pornography even when users report it, as the plaintiffs did in this case. Together, they say, this amounts to knowing participation in a sex trafficking venture.
Taken as true, these allegations suggest only that Reddit “turned a blind eye” to the unlawful content posted on its platform, not that it actively participated in sex trafficking. See Afyare, 632 F. App‘x at 286. Moreover, the plaintiffs have not alleged a connection between the child pornography posted on Reddit and the revenue Reddit generates, other than the fact that Reddit makes money from advertising
CONCLUSION
We conclude, based on the law as written by Congress, that civil plaintiffs seeking to overcome section 230 immunity for sex trafficking claims must plead and prove that a defendant-website‘s own conduct violated
For claims based on beneficiary liability, this requires that the defendant knowingly benefited from knowingly facilitating sex trafficking. Because the plaintiffs have not plead that Reddit has done so in this case, we AFFIRM.
R. NELSON, Circuit Judge, concurring in part:
I join the majority opinion except those portions of Section II.C that discuss the legislative history of FOSTA. The panel concludes that FOSTA is unambiguous as to whose conduct triggers the exception to Section 230 immunity. “When the statutory language is unambiguous and the statutory scheme is coherent and consistent, our inquiry comes to an end, without any inquiry into legislative history.” Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 562 (9th Cir. 2016). In my view, the discussion of proposed amendments to FOSTA that were eventually enacted supports the panel‘s holding that FOSTA‘s language is unambiguous. Cf. BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting) (distinguishing “record of enacted changes Congress made to the relevant statutory text” from “unenacted legislative history“). The discussion in Section II.C of statements from FOSTA‘s sponsor, supporters, and opponents, by contrast, fall squarely within legislative history that the panel need not and should not consider since FOSTA‘s text is clear. Thus, I would conclude our analysis without relying on those statements.