WASHINGTON, D.C.—The legal battle against FOSTA, the law passed earlier this year supposedly to curtail online “sex trafficking,” but which sex workers say has made their jobs more dangerous and some law enforcement authorities say has made tracking down actual sex traffickers more difficult, is over. And the law won. At least for now.
The federal district court in Washington D.C. on Monday dismissed a lawsuit filed in June by the online civil liberties group Electronic Frontier Foundation (EFF), together with the Woodhull Sexual Freedom Alliance, Human Rights Watch and a group of other plaintiffs.
Though the court did not make a decision on whether or not the law is constitutional, in a 29-page ruling, United States District Judge Richard Leon, who was appointed to the court in 2002 by President George W. Bush and was the judge who threw out obscenity charges against Evil Angel mid-trial, found that none of the plaintiffs had “standing” to sue the government to stop the FOSTA law’s implementation.
In other words, none of the plaintiffs, Leon ruled, can demonstrate that they have been damaged by FOSTA, or that invalidating the law would help them correct the injuries they say they have suffered as a result of the law.
The Woodhull Foundation claimed in the lawsuit that due to its mission of advocating for sexual freedom, it might be open to prosecution under FOSTA which prohibits online activity “promoting” or “facilitating” prostitution, sections of the law that Woodhull said were overly broad and vague.
But Leon ruled that FOSTA clearly targets only specific offers of prostitution services, not “the abstract topic of prostitution or sex work.” In response to Woodhull’s claim that by operating its online site it could be targeted by the law, Leon ruled that established law bans only speech that in “intended to commence or induce illegal activities.” As a result, the judge ruled, Woodhull has no standing to challenge the FOSTA law.
But according to EFF, FOSTA could “chill” free speech, which would also violate the First Amendment.
“We’re disappointed and believe the decision is wrong,” EFF said in a statement in response to the judge’s decision. “For example, the court failed to apply the standing principles that are usually applied in First Amendment cases in which the plaintiffs’ speech is chilled.”
In his ruling, Leon said that “allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”
EFF appeared ready to continue with the case, however, saying that Woodhull and the other plaintiffs were “considering their options for their next steps.”
UPDATE: According to First Amendment attorney Reed Lee, "There is more to this opinion than 'case dismissed.'
"It is critically important to understand why this anticipatory challenge to FOSTA has been dismissed. So far, from looking in what I think will turn out to be the right places, it looks like ALL of the decision says that FOSTA is simply not as broad as the challengers feared (and many proponents claimed or hoped). This is not bad news but very good news, as it indicates that, yet again, prosecutors and anti-prostitution forces may have failed to get what they hoped for.
"It looks like the trial judge has held, with respect to every single challenger separately, that FOSTA, properly interpreted, simply cannot reach what [plaintiffs are] doing. Again, that is not bad news at all.
"For this kind of lawsuit, a dismissal for want of a case or controversy does not mean that the lawsuit was for naught. If, as appears here, it results from a narrow reading of the statute, that shows that some antagonists didn't get what they wanted in the statute. (As many of us predicted all along)."
Lee expects to analyze this decision further in the near future.
Photo By Agnostic Preachers Kid / Wikimedia Commons