PASADENA, Calif. — The Ninth U.S. Circuit Court of Appeals on Friday delivered another defeat to the NCOSE-sponsored lawsuit attempting to establish liability for Twitter over user-generated content, denying the plaintiffs a full rehearing.
The Ninth Circuit had dismissed the lawsuit promoted by the anti-porn activist lobby, upholding Section 230 in a ruling last month. Friday’s court order denied the two plaintiffs’ bid to overturn that ruling, and remanded their single remaining claim — that Twitter “benefited from participation in a sex-trafficking venture” — back to a lower court for review, legal news site Law360 reported.
As XBIZ has reported, NCOSE — formerly known as Morality in Media — helped file a lawsuit in January 2021 against Twitter over posts that include nude photos of minors. The plaintiffs claimed Twitter was liable due to the Section 230 loophole opened by the passage of FOSTA-SESTA in 2018.
In a previous ruling, U.S. Magistrate Judge Joseph Spero held that Section 230 shielded Twitter from claims that it participated in child pornography and sex trafficking, but allowed the plaintiffs to sue the company for “allegedly profiting from the traffickers’ illegal conduct,” the San Francisco Chronicle reported at the time. An appeals court, however, ruled that such claims were likewise barred by the Ninth Circuit’s ruling in a suit against the online network Reddit last fall.
The lawsuit was filed in San Francisco on behalf of two men, each only identified as John Doe, who were minors at the time of the posts.
“One, who lives in Florida, said he was duped into posting nude photos in 2017 by someone posing as a 16-year-old girl at his school, then blackmailed into providing additional sexually explicit photos and videos by traffickers who threatened to tell his parents and others if he refused,” the Chronicle reported. “After his classmates began viewing the videos in 2020, the suit said, the youth faced harassment and bullying and became suicidal, while the other John Doe dropped out of school.”
Lawyers for NCOSE had built their argument on FOSTA-SESTA’s claim that Section 230, the so-called “First Amendment of the internet,” was “never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims” and 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.”
Twitter, the lawsuit claimed, “profits from content on its platform that depicts rape, sex trafficking, child sexual abuse and other illegal activity.”
The ACLU and Free Speech Coalition successfully argued in a filing that encouraging the lawsuits promoted by NCOSE and other anti-Section 230 groups would force Twitter, Reddit and other open platforms to either “remove protected, societally beneficial content to avoid the threat of liability — thereby depleting the full scope of speech and information available to the public — or they would opt to remain willfully ignorant of content posted on their services to avoid having any possible awareness (and therefore arguably constructive knowledge) of illegal content appearing there.”
