In late April, a coalition of 21 state attorneys general filed an amicus curiae, or “friend of the court,” brief opposing the ongoing lawsuit by Woodhull Freedom Foundation and other plaintiffs, a lawsuit aimed at striking down the controversial FOSTA/SESTA law passed by Congress and signed into law by Donald Trump last year. But according to an analysis by the site TechDirt, even though the 21 states support FOSTA, the amicus brief may have inadvertently strengthened the case against the “sex trafficking” law.
The federal district court in Washington, D.C. last September tossed out the lawsuit, as AVN.com reported, but not on constitutional grounds. In fact, the George W. Bush-appointed Judge Richard Leon made no ruling at all on the validity of the FOSTA law, instead ruling only that Woodhull and the other plaintiffs had no “standing” to bring the lawsuit, because they could not prove that they were “harmed” by the law.
Supposedly aimed at curtailing the use of the internet for sex trafficking purposes, FOSTA rewrote a key passage of the 1996 Communications Decency Act, Section 230, which is considered the foundation of internet communications. Section 230 prevents internet providers or platforms from being held liable for content generated by users of their services.
But FOSTA changed all that, at least as far as “sex trafficking” is concerned, weakening Section 230 so that internet services are now responsible for any activity deemed conducive to, or "promoting," “sex trafficking.” But under FOSTA's unclear definition of sex trafficking, the law has already led to online self-censorship, and reportedly harmed the livelihoods and safety of sex workers.
Woodhull and the other plaintiffs say they have been damaged by the law, because under FOSTA’s broad definition of “sex trafficking,” even activities as legitimate as advocating for sexual freedom and the rights of sex workers could be banned.
But according to TechDirt, the amicus brief filed on April 22 goes well beyond the government’s contention that the law does not harm the plaintiffs. Instead, the 21 AGs argue that the law gives them broad latitude to go after “sex trafficking” activities—exactly the type of broad latitude that makes the law fatally flawed, according to the Woodhull lawsuit.
“Rather than supporting the [Department of Justice] argument that the plaintiffs' complaints are much ado about nothing,” wrote TechDirt analyst Cathy Gellis, “their brief instead reads as a bright flashing neon sign warning the court that there is plenty of reason for them to be worried.”
Gellis notes that one of the states represented in the brief, Florida, recently had a high-profile “sex trafficking” case, in which New England Patriots owner Robert Kraft was arrested, supposedly involving, prosecutors said, “dozens” of victims of an international sex trafficking ring.
But in April, those same Florida prosecutors quietly announced that the case did not involve sex trafficking after all.
Florida “got sex work and sex trafficking very badly mixed up,” TechDirt wrote. “And here it is announcing to the court how excited it is that FOSTA has given them the power to get them mixed up in a way that will affect even more people.”
How the court will respond to the amicus brief is not yet clear, as oral arguments in Woodhull's appeal of the lawsuit’s dismissal have not yet been scheduled.
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