WASHINGTON, D.C.—Yesterday was a big day for the Woodhull Freedom Foundation and its co-plaintiffs/appellants in their fight to have the recently passed Fighting Online Sex Trafficking Act (FOSTA) declared unconstitutional: Four organizational groups filed amicus briefs with the U.S. Court of Appeals for the D.C. Circuit, all challenging Judge Richard J. Leon's ruling that none of the Woodhull plaintiffs have legal standing to challenge the law.
The most voluminous amicus, weighing in at 83 pages (including witness affidavits), is the work of several "sexual freedom" groups including Freedom Network USA, Sex Workers Project, New York Transgender Advocacy Group, National Coalition for Sexual Freedom, Free Speech Coalition (whose president, attorney Jeffrey Douglas, supplied an affidavit), St. James Infirmary and several others. In explaining why these groups filed in support of Woodhull, the brief states, "Amici have a long history in the struggle to ensure that all persons who have been discriminated against, criminalized, or marginalized due to their sexual orientation, sexual or gender identity or expression, or behavior are protected. Many amici also work to support and provide services to people who are trafficked and abused. ... Amici curiae are eleven rights-based organizations or coalitions advocating for sex workers, survivors of trafficking, the prevention of child sexual abuse, and the promotion of sexual freedom and health for adults. FOSTA has had significant, harmful outcomes for the clients, communities and members of amici organizations, including serious economic consequences and impacts on well-being, health, and safety."
The "Freedom Network" amicus primary argument is that the "Conflation of Human Trafficking and Sex Work Leads to Misguided Policy," and it then proceeds to define the distinct terms "trafficking in persons," "sex work" and "prostitution," all of which FOSTA conflates due to the vagueness of the law's wording. The amicus notes that "Sex work denotes voluntary erotic labor of adults," and that "The majority of sex work is legal." Such work includes exotic dancing/stripping, dominatrix/fetish work, adult film performance, webcamming, phone sex and, at least in some counties in Nevada, prostitution. It also notes that, "While forced prostitution, i.e. 'sex trafficking,' certainly does exist, the majority of trafficking occurs in legal labor sectors, such as restaurant work, farm labor, and nail salons." However, FOSTA targets several of these legal industries, and perhaps more importantly, discussion of these legal industries in online forums and elsewhere.
"There is a long history that explains the difficulty policymakers have in navigating the distinction between human trafficking and sex work," the amicus states. "This history predates the advent of trafficking laws in the early 2000s and points to a divide about the nature of female sexuality and the sex industry. The sex workers’ rights movement views prostitution and trafficking as distinct, with all forms of erotic labor being a viable occupational choice, not victimization or harm. When there is a fundamental misunderstanding of an issue, especially one with such emotional overtones, misguided and ineffective laws follow."
Examples of this fundamental misunderstanding include the Mann Act from 1910, the Trafficking Victims Protection Act and the Trafficking Victims Protection Re-Authorization Acts (2012), which conflate trafficking and prostitution, and the End Banking for Human Traffickers Act of 2018, which "seeks to put pressure on financial institutions to close accounts of individuals suspected of human trafficking. There is fear amongst people in the sex industry that their bank accounts will continue to be shut down out of overzealous reactions, similar to the widespread shutdowns of websites in the wake of FOSTA."
The amicus then goes on to argue why the original plaintiffs in the Woodhull suit do have standing to contest the law, and provides affidavits from several people directly affected by FOSTA. For example, regarding the adult entertainment industry, Douglas points out that, "The enactment of FESTA/SOSTA has significantly harmed numerous members, both businesses and individuals throughout the broad reach of our industry. Even before its effective date, avenues of communication and commerce were foreclosed. Since then the environment has worsened. Specifically, several member companies have decided to close their user to user forums out of fear that someone may post content creating liability that would not be caught by their customer support team. This damages their users’ ability to freely post comments on videos and share comments with other viewers. As a consequence, the sites have a less robust, dynamic relationship with their users. One company terminated its plan to acquire another company which provided online services to screen and recruit performers out of fear of liability under FOSTA/SESTA. Other companies have reduced advertising for legal adult content because it is unclear what the extent of responsibility to them as a marketplace would be."
The Freedom Network amicus can be found here.
Another amicus was filed by the parent of the online forum Reddit, together with the groups the Copia Institute, described as a "small business that advises and educates innovative technology startups on policy issues, including those relating to platforms and the important free speech interests associated with their protection" and which owns the website Techdirt, and Engine Advocacy, which describes itself as "a nonprofit technology policy, research, and advocacy organization that bridges the gap between policymakers and startups." This amicus deals mainly with the chilling effect FOSTA has engendered regarding free sexual speech in online forums and elsewhere.
"Speech is chilled by fear," the amicus argument summary begins. "Section 230 [of the 1996 Communications Decency Act] protected online speech by ensuring platforms would not have to fear legal liability for facilitating it. The changes FOSTA made to its operation have now brought the fear back, and as a result online speech has suffered. ... By eroding the statutory protection that used to enable platforms to facilitate user speech, FOSTA has eroded their ability to facilitate this speech, and with it eroded their businesses, by replacing this critical statutory protection they depended on to protect them from liability with a palpable fear of new liability of indefinite scope. Not only has FOSTA caused them to lose users, their expression, and their communities to terrified, self-censoring silence due to FOSTA’s vague and expansive statutory language, but the reasonable fear of enormous civil and criminal liability is now driving platforms’ site moderation decisions, resulting in over-censorship of legitimate user expression and neglect of their forums." [Citations omitted here and below]
The brief goes on to explain that by making certain online postings legally punitive, "FOSTA disrupts the deliberate balance Congress originally struck to encourage the most good, and least bad, expression online, and unconstitutionally leads to the opposite result." The brief gives several examples of this, and argues that the chilling effect FOSTA places on online speech far outweighs any minor benefit the self-censorship of such speech may have in preventing human trafficking—and in fact, the lack of online discussion of sexual issues is an actual hindrance to such prevention.
The Reddit amicus can be found here.
The Center for Democracy and Technology (CDT) amicus is an excellent companion to the Reddit brief, in that it explores the history of the government's attempted censorship of the internet, beginning with the Communications Decency Act, "a federal statute that prohibited the online transmission or display of 'indecent' and 'patently offensive' material," which was eventually struck down, though the courts preserved Section 230 of that Act, which provided "broad federal protection that would shield online service providers from liability for hosting, publishing, and making available other people’s speech."
"Section 230 reinforces both the rights of individuals who use the Internet to express themselves, as well as the First Amendment rights of platforms to curate and present third-party material," the CDT argues. "FOSTA is fundamentally incompatible with these vital First Amendment protections. The law simultaneously criminalizes the operation of websites based on their contents and abrogates Section 230 protections for broad categories of speech. While admirably intended to stop crimes related to sex trafficking and other forms of sexual abuse, this inartfully drafted law sweeps in significant amounts of protected speech. It threatens legitimate speakers and online services with liability, including criminal liability. Further, it already has resulted in chilling lawful, even desirable, speech about prostitution and sex work."
The CDT amicus also notes other censorship attempts including the 1998 Child Online Protection Act (COPA), which was also struck down in Ashcroft v. Free Speech Coalition, plus various state and local laws that have attempted to outlaw certain online material—including the attempt by then-California Attorney General Kamala Harris to prosecute Backpage.com's owners. The brief also includes a stirring defense of Section 230 as being vital to free internet speech.
The CDT amicus can be found here.
Finally, the Institute for Free Speech, "a nonpartisan, nonprofit organization that works to protect and defend the rights to free speech, assembly, press, and petition," filed its own amicus brief, dealing largely with the fact that throughout First Amendment jurisprudence, federal courts have given plaintiffs great leeway regarding whether they have standing to bring actions against entities that challenge their free speech rights. In that sense, it makes an excellent companion piece to Woodhull's own appellate brief to the court.
"Courts have long recognized that the First Amendment needs 'breathing space' to survive, and that the danger posed by regulating speech is not limited to specific criminal prosecutions," the Institute's brief begins. "Rather, such laws threaten to chill protected activity outside a specific case, and courts have wisely allowed hardy or well-resourced plaintiffs to vindicate not only their own rights, but also those of their fellow citizens. Similarly, the specific nature of First Amendment chill—the danger that citizens will not risk speaking in the face of ambiguous or merely possible governmental action, the resulting damage to public discourse, and the government’s slight or nonexistent countervailing interests—has long been understood to require that courts take special care to remain open to litigants, and that judges not accept governmental proffers of good faith at face value. These goals have been accomplished, in large part, by relaxing the traditional rules of standing. After all, the First Amendment must be 'protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.'"
The full Institute for Free Speech amicus brief may be found here.
All in all, that's one hell of a lot of legal firepower Woodhull has amassed in its fight against FOSTA—and it's likely that more anti-censorship/sexual freedom advocates will join this fight before it's over.
