WASHINGTON, D.C.—The Woodhull Freedom Foundation and its co-plaintiffs appeared to get a boost Friday during their appeal of Judge Richard J. Leon's dismissal of their lawsuit against the federal Fight Online Sex Trafficking Act (FOSTA) roughly one year ago, with reports that a three-judge panel of the D.C. Court of Appeals is apparently leaning toward reinstating the suit.
As a legal panel at the Adult Entertainment Expo last January pointed out, FOSTA has "created the brand-new crime of 'facilitating or promoting' prostitution online," and also removed immunities that the online platforms used to have for content posted by their users over which the sites exercised no editorial control.
The plaintiffs/appellants' stance is, in part, that the vague wording of the statute could easily expose the plaintiffs—Woodhull, the Electronic Frontier Foundation, the Internet Archive and two sex worker advocates—to criminal liability merely for advocating for the decriminalizing of sex work and/or providing support services to those workers, and that FOSTA has created a minefield for sex workers themselves who can no longer advertise their services online or screen clients before face-to-face meetings.
Basically, Judge Leon dismissed the lawsuit because, in his opinion, the plaintiffs lacked standing to bring the suit in the first place because the judge felt that none of them were in danger of being prosecuted under the Act—and "standing" was the first issue the appeals panel tackled.
"Before we get to the merits ... it’s a standing issue. And all of the case law tells us this is an area where we tread lightly...,” said Circuit Judge Thomas Griffith, adding, "At this stage of the litigation, the government has to show the plaintiffs' reading [of the law] is totally unreasonable. It’s supposed to be a heavy burden for the government. We’re talking about the First Amendment here."
However, according to an article posted on the Law360.com website (subscription required), Assistant Attorney General Courtney Dixon of the Justice Department's Civil Division argued to the panel that the plaintiffs/appellants had not shown a "credible threat of prosecution," even though internet service providers such as Craigslist and several other "contact" sites had dropped their "adult services" sections for fear that the government would come after them under FOSTA. Dixon also argued that nothing in FOSTA put Woodhull and its confreres at risk for prosecution, and that therefore, they lacked standing to challenge the law, arguing that the "harm reduction" and protection services the plaintiffs/appellants provide to sex workers are "different from promoting any specific act of prostitution" and therefore not illegal under FOSTA.
"It’s owning or maintaining an interactive computer service with the intent to promote the prostitution of another person" that's actionable under FOSTA, Dixon told the panel, and claimed that none of the individuals or organizations challenging the law were doing that or wanted to do it.
"But [they] in fact do facilitate and promote prostitution" through their writings and actions, Judge Thomas Griffith retorted, with Judge Gregory Katsas adding later that facilitating state prosecutions and civil litigation regarding sex trafficking online was exactly what FOSTA was intended to promote.
Therefore, "for standing purposes, we're talking about exposure to enforcement actions," Judge Katsas said. "Any punitive victim can pursue a civil case resting on a broader interpretation of the statute."
Prominent First Amendment attorney Robert Corn-Revere, representing the moving parties, spent much of his time before the panel arguing that FOSTA represents a major threat to free sexual speech, since it creates criminal liability for the plaintiffs/appellants even for simply publishing materials online to educate sex workers about their wellbeing. Educating sex workers about their health and safety could be misconstrued as "facilitating prostitution," Corn-Revere charged.
Although the appeals hearing did not get into the merits of the lawsuit, Judge Griffith nonetheless asked Corn-Revere whether anyone had yet been prosecuted under FOSTA, and the attorney admitted that no one had, but quickly added that, "Whether there has been any prosecution is not the relevant standard for standing."
Judge Katsas then questioned Corn-Revere whether he thought lower courts might construe FOSTA to apply only to actions carried out by sex work supporters and not mere advocacy. Judge Griffith later asked a similar question: "What happens when the text of the statute covers the conduct, but when we apply principles of leniency and avoidance, it doesn’t cover [those]? What should we do at this stage in the case?"
Corn-Revere countered that since no FOSTA prosecutions had yet taken place, the panel really had no basis to consider how strictly or broadly the government would apply the law.
"They’ll argue, when they’re defending the law, that they’re going to be very careful and it’s just specific intent and no one can possibly prosecute anyone but the [person found] guilty," Corn-Revere responded. "And yet when it comes to actually applying the law, they are less fastidious about applying intent. ... [A]t this stage, you accept the reasonable arguments of the plaintiffs of what they think the statute can cover."
The appeals panel then took the case under advisement, and it is not known when it will issue a ruling on the status of the lawsuit.
