Yes, SESTA Is Probably Unconstitutional After All

Last Minute CRS Memo Doesn’t Actually Say the Law Won’t Violate Ex Post Facto Clause

The Senate just voted 97–2 to approve SESTA-FOSTA, the hybrid bill approved by the House two weeks ago. They just set a terrible precedent: brushing aside concerns that a bill might be unconstitutional — from the Department of Justice, no less — based on half-baked, inconclusive legal analysis.

Recall that, right before the House voted, the Department of Justice sent a letter to House Judiciary Chairman Bob Goodlatte warning that the the bill would be unconstitutional insofar as its repeal of Section 230 immunity had retroactive effect. The Republican Policy Committee released a memo on the March 16th, which was brought to our attention only just this afternoon, dismissing the DOJ’s concerns based on an unpublished Congressional Research Service memorandum. After scrambling to try to find a copy of that CRS memo, I don’t think it actually resolves the question. Here’s why.

Frankenstein Merger of SESTA and FOSTA Created Last-Minute Confusion

At the outset, note that, while SESTA has had this retroactive provision all along, that bill was never reviewed by the Judiciary committee in either Chamber. FOSTA, the bill developed by House Judiciary Committee Chairman Bob Goodlatte had no such retroactive provision. So when the House voted to approve Rep. Mimi Walters’ amendment to the version of FOSTA passed out of Goodlatte’s committee — thus merging the Senate’s SESTA into FOSTA — it simply adopted this retroactive application provision and extended it to the new crime created by FOSTA.

That provision effectively repeals two of the three immunity provisions established by Congress under Section 230 in 1996. This allows new punishment — and thus potentially triggers the ex post facto clause — in two key ways.

Concern #1: Authorizing State Prosecutions (SESTA)

SESTA (the SESTA part of the combined bill) allows states to prosecute conduct that was already illegal under federal law (remember, Section 230 never immunized websites from federal criminal law) but which Section 230 previously barred states from prosecuting (so long as the immunity applied — i.e., unless a website was shown to be responsible, in part, for user content.) The CRS memo argues that this does not violate the ex post facto clause, citing the Supreme Court’s 2003 decision in Stogner v. California, where the Court quoted Justice Chase as defining ex post laws as “referring to a statute that inflicts punishments, where the party was not, by law, liable to any punishment.” Calder v. Bull, 3 Dall. 386, 391 (1798).

In other words, CRS argues, because the conduct was already illegal under federal law, merely making it illegal under state law does not violate the ex post facto clause — provided “there was no change in the quantum of punishment to the crime,” as the Court noted in the second case cited by the CRS memo, Dobbert v. Florida, 432 U.S. 282 (1977). That would require state laws to precisely mirror the federal law, both in substance and in potential punishment — which might leave the door open to ex post facto challenges to the law as applied, even if not to a facial challenge.

While keeping in mind that this is one CRS lawyer’s analysis of a complex legal question, and there might be other relevant case law not presented, this at least seems like a fair reading of Stogner. In short, CRS and the RPC might be right that SESTA, by authorizing state prosecutions, doesn’t necessarily violate the ex post facto clause.

Concern #2: Creating a New Crime (FOSTA)

But concerns about the retroactive application of FOSTA’s new facilitation of prostitution crime (Section 2421A) can’t so easily be dismissed. The memo says:

Proposed Section 230(e)(5)(c) is different because dual state and federal prosecutions would only occur after proposed 18 U.S.C. § 2421A’s enactment and, consequently, any conduct subject to revived state prosecution would not have been a federal crime when the conduct occurred. However, Section 230(e)(5)(c) would create no new federal crime or enhance punishment for any pre-existing federal crime and only impacts state law. We have been unable to locate any case that indicates that the Ex Post Facto Clause limits Congress’s legislative authority in such a situation.

Read that carefully. CRS isn’t saying that this part of the retroactive application provision isn’t unconstitutional. They’re actually saying they can’t answer the question. As a first approximation, that’s a fair answer — especially when they’re given a very short window to research a hard legal question.

What’s not fair is for the RPC to assert that “Congressional Research Service memorandum disagrees with [DOJ’s conclusion that the law provision is unconstitutional] because the amendments to Section 230 ‘would create no new federal crime or enhance punishment for any pre-existing federal crime.’”

Actually, if you think through the CRS analysis a little further, the question isn’t unclear at all: Dobbert suggests that this part of the retroactive application provision would violate the ex post facto clause. In Dobbert, where Florida re-enacted the death penalty after a Supreme Court decision striking it down, the Court rejected an ex post facto challenge to a death sentence because “[t]he new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment to the crime.” FOSTA absolutely does not “simply alter the methods employed in determining” how existing liability applied — it creates an entirely new crime!

How can creating a new crime possibly not violate the ex post facto clause? How is FOSTA’s 2421A not precisely what Justice Chase was referring to in 1792: “a statute that inflicts punishments, where the party was not, by law, liable to any punishment?” The CRS memo doesn’t answer these questions, merely saying that the retroactive application provision “would create no new federal crime or enhance punishment for any pre-existing federal crime and only impacts state law.” That seems to miss the point entirely: the provision does authorize retroactive enforcement, by both states and the federal government. That is the ex post facto problem.

How We Got Into This Mess — and What’s Next

These are both hard questions — precisely the sort of question that can’t possibly be worked out with any degree of confidence at the last minute, based on a single sentence in a short memo written by advocates of a piece of legislation, based on 812 words (including an extensive block quote) of analysis by one CRS lawyer, especially when that lawyer admits he can’t really answer the truly difficult question. This last-minute confusion simply illustrates what we’ve been saying all along: any amendment to federal criminal law should go through the Judiciary Committees in both chambers. They’re the real experts here — not CRS or the RPC (a partisan organ).

The House Judiciary Committee didn’t create these problems. Their version of FOSTA had no retroactive application. These problems are entirely the making of SESTA’s Senate sponsors, who refused input from the Senate Judiciary Committee and ignored both the House Judiciary Committee and the Department of Justice — and of Republican House Leadership, which simply rolled over and did what SESTA’s Senate sponsors wanted.

These questions will inevitably wind up in litigation. Even if a court surgically edits the law, striking down only the retroactive application provision rather than the entire law, there’s never any excuse for Congress to pass laws that it knows might be unconstitutional — especially when the Department of Justice tells them so. It’s not enough that the bill’s sponsors respond, at the last minute, with their own half-finished analysis. This just isn’t how Congress is supposed to work. The Committee process, ignored in this case, protects everyone from embarrassing, last minute fiascoes like this.

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