Doe v. Twitter and its Place in the War on Porn

SAN FRANCISCO, Calif. – “In 2021, we’ll be fighting harder than ever to ensure the online pornography industry is taken down once and for all!”

So says the National Center on Sexual Exploitation (NCOSE) in a post published on its website earlier this month. The title of the post is equally unambiguous about the organization’s goal: “An End to the Internet Pornography Industry as We Know It.”

The post is largely a celebration of what the NCOSE sees as Pornuhub’s empire “crumbling before our eyes,” but NCOSE also acknowledges “this fight isn’t over.”

“NCOSE is looking for the view at the top of that hill—a world truly free from all forms of sexual abuse and exploitation, including pornography,” the post states, emphasizing again the organization’s view that all sexually-explicit material is exploitative, lest anyone think their campaign is limited to content depicting nonconsensual sex, underage persons, or anything else that renders it patently illegal.

This drive to eliminate pornography now includes a lawsuit against Twitter, filed on behalf of a minor who alleges that when sexually explicit material depicting him was posted to the platform, Twitter “refused to remove the illegal material and instead continued to promote and profit from the sexual abuse” of the plaintiff.

Make no mistake: If the allegations in the complaint are true, Twitter appears to have badly mishandled Doe’s complaint when the content was first reported to them, taking far too long to act, only doing so once contacted by an agent from the U.S. Department of Homeland Security on behalf of the plaintiff’s family.

On the other hand, Twitter is a massive platform, with hundreds of millions of users and over 500 million tweets published each day. With the volume of requests that the company receives to take down content, it’s not difficult to see how a single complaint – even one about something as serious and maddening as the sexual exploitation of a minor – could be mishandled without any ill intent on the part of Twitter’s moderators and compliance reviewers.

This lawsuit must also be considered in the broader context of NCOSE’s goal to take down the online porn industry, “once and for all.” Twitter is the sole named defendant, but the target is far larger than the social media platform on its own. It’s part of a broader strategy to drive up the cost of a platform which allows users to post sexually explicit material.

The lawsuit is also something which wouldn’t have much prospect for success, either in holding Twitter liable, or for encouraging the platform to self-censor, prior to the Fight Online Sex Trafficking Act (“FOSTA”) being signed into law.

“The claims against Twitter result solely from the adoption of FOSTA,” attorney Lawrence Walters told YNOT.

Walters is part of the legal team representing the Woodhull Freedom Foundation and other plaintiffs in their lawsuit challenging the constitutionality of FOSTA – a lawsuit which argues in part that FOSTA creates a “chilling effect” on online speech of exactly the sort NCOSE hopes their lawsuit will encourage. Walters noted that if Woodhull’s challenge is unsuccessful and the court upholds FOSTA, it could spell trouble for Twitter in lawsuits like the NCOSE’s.

“I believe that FOSTA is unconstitutional, for the reasons set forth in the Woodhull v. United States case,” Walters said. “If the law is found to be constitutional, Twitter may have some legal exposure. Otherwise, Section 230 would immunize all of these claims.”

While he conceded there’s “no question that Twitter could have done better in this case, if the allegations are true,” Walters also said the incident “should be viewed in the context of thousands, or hundreds of thousands, of similar abuse reports that must be sorted, evaluated, and acted on if valid, by any large platform provider.

“No content moderation system is perfect, and some illegal content will slip through the cracks of even the most robust systems,” Walters added. “Current law allows for expansive civil and criminal liability to be imposed on platform operators because of these inevitable errors. If the courts allow this legal exposure to endure, countless new platforms will never launch due to the intolerable legal risks. The public will suffer the loss of innovation and means of free expression.”

While the likes of the NCOSE would probably argue it’s worth “throwing out the baby with the bathwater,” as the old saying goes, for those who aren’t obsessed with ridding the world of sexually explicit depictions, or who don’t believe that limiting the ability of consenting adults to produce such depictions, there are public policy implications to consider that go beyond the issues at hand in the lawsuit.

“The overarching question here is whether we make the policy choice to place the blame for illegal conduct on the criminal, or on the platform utilized by the criminal to disseminate the illegal material,” Walters said. “For 20 years, Congress made the correct choice and blamed the criminal. In response to the sex trafficking panic, Congress reversed course and decided to shoot the messenger by passing FOSTA.”

Another thing to consider here: Even with FOSTA in place, it’s not clear the NCOSE will succeed in holding Twitter liable for the claims in its lawsuit.

“Arguably, the First Amendment requires the kind of immunity granted previous to FOSTA, and this case may ultimately reach those issues,” Walters said.

Other legal observers have noted that the NCOSE’s lawsuit includes claims which are problematic even with FOSTA in place. In a recent Twitter thread, attorney Kendra Albert, Director of the Initiative for a Representative First Amendment, argued that the complaints state law claims are preempted by Section 230, regardless of FOSTA.

“(M)ost of this lawsuit is, in my professional opinion, likely to get thrown out on a motion to dismiss,” Albert wrote. “Counts 4-11 are state law claims and are preempted by Section 230 – FOSTA does not change that.”

Third, most of this lawsuit is, in my professional opinion, likely to get thrown out on a motion to dismiss. Counts 4-11 are state law claims and are preempted by Section 230 – FOSTA does not change that.

— Kendra Albert (@KendraSerra) January 24, 2021

Of course, NCOSE’s lawsuit need not succeed to have an impact. Simply applying public relations pressure to businesses has been effective for the NCOSE in the past, as the organization is fond of noting in its frequent declarations of “victory,” most of which have not involved filing lawsuits.

Time will tell what comes of NCOSE’s lawsuit against Twitter, but this much we already know: The NCOSE will keep firing volleys in its ongoing War on Porn, trumpeting its “victories” each time it leads a private entity to self-censor and celebrating its further muzzling of sexual expression, every step along the way.