WASHINGTON—The U.S. Court of Appeals for the District of Columbia recently held that the ostensibly anti-sex trafficking Trump-era law known as FOSTA-SESTA is constitutional, despite arguments by civil society groups, sex workers’ rights groups, and adult entertainment industry advocacy organizations calling the law a violation of the First Amendment. Luckily, there is a silver lining built into the decision, which came down on July 7.
In a press statement, the Woodhull Freedom Foundation—one of the organizations suing the U.S. federal government seeking to block FOSTA-SESTA’s ongoing enforcement—indicated that the appellate court’s decision is not what the group expected. “Although the court did not issue the constitutional ruling we sought, it held that the law must be interpreted narrowly in order to avoid ‘grave constitutional questions,’” Woohull says in its statement. “By imposing the interpretive discipline Congress lacked, the court ruled out many of the broader applications of FOSTA that caused us to challenge it.”
This narrowing was a crucial step. As Woodhull's statement goes on to explain, the court held that FOSTA-SESTA “does not proscribe facilitating prostitution more generally, which could extend to speech arguing for the legalization of prostitution or that discusses, educates, or informs about prostitution.” Also, it notes, the law “does not reach the intent to engage in general advocacy about prostitution or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution.”
Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, and two individuals (one being sex worker rights activist Alex Andrews) brought the case questioning the constitutionality of FOSTA-SESTA through representation provided by a crack legal team. This team includes legendary First Amendment counsel Bob Corn-Revere for the Foundation for Individual Rights and Expression, attorneys for the Electronic Frontier Foundation, Lawrence G. Walters of the Walters Law Group, and the Stanford Cyber Law Center counsel Daphne Keller.
FOSTA-SESTA was signed into law in 2018 by then-President Donald Trump, and was championed by an “unholy alliance” of far-right religious groups and so-called sex worker exclusionary radical feminist (SWERF) activists. By adopting FOSTA-SESTA, this so-called unholy alliance gutted the safe-harbor provisions built into Section 230 of the Communications Decency Act of 1996 that permits web platforms to self-regulate for the benefit of protecting all forms of protected expression online.
“We are disappointed in the court’s ruling and discussing options for moving forward with the clients,” said David Greene, Electronic Frontier Foundation’s civil liberties director, in a report on the decision published by Bloomberg Law. “In the meantime, FOSTA continues to be a bad law that has forced sex work back on to the streets and otherwise endangered the lives of sex workers and others.” Litigators representing the U.S. Department of Justice defended FOSTA by declaring that the statute is “narrow and clear.” Woodhull was able to convince the panel of three judges at the D.C. circuit that the particular language in the statute is broad, therefore creating unwarranted legal uncertainty for web publishers and site owners.
FOSTA-SESTA is part of a long-winded legislative, legal and political crusade to drastically reform or completely repeal Section 230 by both Democrats and Republicans. However, FOSTA is considered even more dubious than other Section 230 reform proposals because it criminalizes otherwise First Amendment-protected forms of speech, including such expressions posted by sex workers and adult entertainment professionals on the internet. In fact, there is ample evidence to suggest that the law made sex work much more dangerous. U.S. Rep. Ro Khanna, D-CA, has introduced the SAFE SEX Workers Study Act to study the impact of FOSTA-SESTA on those who participate in sex work. Such an act would direct the Department of Health and Human Services to conduct a “federal study on the impact ... [of the] 2018 anti-sex trafficking bill.”
Elizabeth Nolan Brown, a senior editor for Reason, has tracked the highest-profile prosecution brought under FOSTA-SESTA against web platforms. Considering Brown’s very extensive reporting, there is ample evidence that FOSTA is a very ineffective statute. Federal reports also indicate that FOSTA-SESTA has been extremely ineffective. The Government Accountability Office, for instance, reported that only one major prosecution was brought forth in the years since the law was adopted, signed and implemented by the former Trump administration.
In the federal criminal cases against Michael Lacey and James Larkin, the award-winning civil libertarian newspaper publishers and former owners of the now-seized classifieds web platform Backpage.com, prosecutors have openly floundered. For example, a federal district judge already declared a mistrial in 2021 due to the inability of prosecutors to tie the charges of sex trafficking and facilitating illicit sexual activities through Backpage to Lacey and Larkin. Defense counsel for both Lacey and Larkin have effectively outlined an organized effort by federal prosecutors to not only limit both of their First Amendment rights to publish on the internet, per Section 230, but to also make the case that FOSTA-SESTA is nothing more than bad public policy. As an indication of this effort to infringe upon Lacey and Larkin’s free speech rights, the federal prosecutors in the Backpage retrial recently filed a motion in limine to preclude counsel for the Defendants and their witnesses from “referencing the First Amendment and 'free speech' in front of the jury.”
In filings on behalf of Woodhull and the others suing the federal government, Backpage’s case is referenced extensively to present ineffectiveness and the broad elements of the statute that the panel of judges ruled need to be defined and narrowed to ensure some respect for due process.
