Constitutive Choices: Section 230 and First Amendment Values Versus FOSTA and President Trump's Executive Order

In 2018, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) produced the first category of speech not provided immunity by Section 230 of the Communications Decency Act. This first cut against Section 230 was followed by President Donald Trump's May 2020 executive order aimed at limiting the legal protections for social media companies. Both of these actions represent a new battle over old ideas about protecting expression. This Article uses Paul Starr's "Constitutive Choices" model to suggest that Section 230 represents a legacy of laws and regulations designed to foster free speech and access to information.

As this latest battle continues in Woodhull Freedom Foundation v. United States, this Article argues that FOSTA violates the First Amendment, failing strict scrutiny review.