Despite its name, the Stop Enabling Sex Trafficking Act threatens free speech

Despite its name, the Stop Enabling Sex Trafficking Act threatens free speech
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In "Politics and the English Language," George Orwell wrote that "political speech and writing are largely the defense of the indefensible,” noting that banal euphemisms are often used to describe war and other atrocities. Six decades later, American political speech does the opposite — largely making defensible positions appear indefensible.

The Stop Enabling Sex Traffickers Act of 2017 (SESTA) embodies this reality. After all, who could possibly support sex trafficking? Facebook, Google, Twitter, Amazon, and most major online platforms oppose the proposal, leading to predictable headlines like “Tech companies push back as Congress tries to fight online sex trafficking” and “Google and Sex Traffickers Like Backpage.com.” And with outrage over "big tech" and its efforts to censor and influence political speech, some conservatives have joined with those condemning the companies for their opposition.

But the truth is that SESTA could create calls for even more censorship. The legislation would revise Section 230 of the Communications Decency Act, which protects online platforms such as search engines and social media from being charged for the misconduct of their users. That immunity is premised on the idea that online services are simply neutral tools.

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Those who advocate for cracking down on “fake news” and “hate speech” reject this view. For example, Slate’s William Oremus noted, “If Facebook is a neutral platform, as it insists, then it can deny any responsibility for how people use it, any responsibility for what they post or share, any responsibility to ensure the accuracy or fairness or journalistic virtue of whatever news might circulate on it.” Making these companies responsible for content from hundreds of millions of users’ material, even in limited circumstances, will inevitably create incentives for them to censor content more widely.

 

No one wants sex traffickers to operate online, but it’s difficult to limit online platforms’ liability to one heinous exception. Criminals can use social media to solicit or commit virtually every crime. If we make Facebook responsible for hundreds of millions of users when it comes to sex trafficking, why not murder, drug dealing and terrorism as well? If it extends to those, what about political speech? There's already precedent for it. Twitter justified banning Milo Yiannopoulos and several other users over alleged "harassment."

One anonymous pro-SESTA lobbyist explicitly embraced this slippery slope, telling The Hill, “There’s a common theme here: You look the other way when it comes to sex trafficking, you look the other way when it comes to fake news, you look the other way when it comes to fake political advertisements.” He asked, “How about we start with [SESTA]?”

It's important to note that opposing SESTA does not mean tolerating websites it targets, such as Backpage. To quote Sen. John ThuneJohn Randolph ThuneCongress races to beat deadline on shutdown Hillicon Valley: House passes anti-robocall bill | Senators inch forward on privacy legislation | Trump escalates fight over tech tax | Illinois families sue TikTok | Senators get classified briefing on ransomware Senators inch forward on federal privacy bill MORE (R-S.D.), SESTA is not the “Anti-Backpage.com Act of 2017.” The problem is simply that, like many well-intentioned laws, it has consequences far beyond the narrow harms it is intended to fight.

Sex trafficking has flourished on websites such as Backpage because they actively encourage users to post it, not just because they have immunity. Backpage's “adult services” section was an invitation to post ads for prostitution, and it took additional steps to avoid detection as well. Scholars such as the Brookings Institute's Benjamin Wittes and the University of Maryland's Danielle Citron offer a more sensible reform to Section 230: exempt sites that “purposefully encourage” sex trafficking and other illegal behavior. Such an action would remove protection from sites that engage in illegal activity without forcing every site to police their users’ content. More importantly, it would keep us off the slippery slope that leads to further censorship.

Mark Epstein is an attorney and legal policy advisor for The American Cause, a nonprofit conservative think tank in Washington, D.C.