Textualism and the Modern Explanatory Statute

Abstract

The explanatory statute is a largely forgotten legislative tool. Once common, the explanatory statute was a retrospective act that identified an ambiguity or erroneous interpretation of a prior law and then directed the legislature’s view of the correct interpretation. Although now rare, the explanatory statute is not dead. Just a few years ago, Congress enacted an amendment to Section 230 of the Communications Decency Act—a now hotly contested topic—with the hallmarks of an explanatory statute. In the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), Congress concluded that courts had over-extended Section 230 immunity to preclude claims by sex trafficking victims and so clarified that the immunity should not be construed to impair those claims. So far, however, courts and commentators have taken a narrow view of FOSTA and assumed that it preserves only those claims specifically enumerated in the statute. This view proceeds from an underappreciation for explanatory statutes and their proper application. Indeed, given their rarity, little has been written about how to approach statutes of this sort under the prevailing textualist methodology. This Article aims to fill that gap by proposing a generally applicable textualist framework for analyzing modern explanatory statutes. When applied to FOSTA, that framework yields a perhaps surprising result: A sound, textualist reading of FOSTA may invite federal courts to recalibrate the scope of Section 230 immunity, even outside the context of sex trafficking claims.