WASHINGTON, D.C.—It's been almost exactly one year since the Woodhull Freedom Foundation, Human Rights Watch, the Internet Archive and two individuals filed suit in federal court to overturn the Fight Online Sex Trafficking Act (FOSTA) which was signed into law in 2017, and a bit less than one year since U.S. District Judge Richard J. Leon threw the case out of court, ruling that none of the plaintiffs had standing to bring the action in the first place.
But Woodhull recently announced that the U.S. Court of Appeals for the D.C. Circuit had set September 20 as the date to hear arguments appealing Judge Leon's dismissal of the case and asking for a preliminary injunction against enforcement of the law.
"We look forward to presenting our case to the panel, and remain optimistic regarding the outcome," First Amendment attorney Lawrence G. Walters, one of the attorneys involved in the case, told AVN. "FOSTA has resulted in massive censorship of online speech, and this case is critically important to internet freedom."
Woodhull and its fellow plaintiffs claim to have identified several constitutional defects in FOSTA, including First and Fifth Amendment violations, and the suit claims that FOSTA is vague, overbroad, and constitutes a content-based restriction on protected expression—and in general that it chills speech and has put so much fear into online contact websites like Craigslist and Backpage that the law actually puts sex workers in more danger than before the law was passed.
Basically, FOSTA—and in particular, the section at issue in this lawsuit, Sec. 2421A—makes it a federal offense to own, manage or operate "an interactive computer service ... with the intent to promote or facilitate the prostitution of another person" or to attempt or conspire to do so. Conviction of violation of FOSTA can result in large fines or up to 25 years in prison. The law also undercuts section 230 of the Communications Decency Act of 1996 by making ISPs liable for any user who promotes and/or facilitates prostitution on their system, even if the ISP itself was unaware of the posting. It also allows individuals who claim to have been trafficked or prostituted because of the posting to sue the ISP in civil court for damages.
At present, however, no one has yet been convicted under FOSTA, so the current lawsuit is a peremptory challenge—and it's partly on that basis that Judge Leon dismissed the suit and the request for an injunction.
In order to bring a lawsuit in federal court, the parties must have "standing" to do so, and according to settled law, to have standing, a plaintiff must have "1) suffered an injury in fact that 2) is traceable to the challenged conduct of the defendant, and 3) that is likely to be redressed by a favorable judicial decision." Also, according to previous Supreme Court rulings, the alleged injury must be "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"—and Judge Leon found that none of the plaintiffs could show evidence that their danger from FOSTA was either actual or imminent.
"Woodhull is particularly concerned with Section 2421A's use of the terms 'promoting' and 'facilitating' ..." Judge Leon ruled. "FOSTA does not define those terms, and plaintiffs believe that they could sweep broadly—so broadly, in fact, that they could place any activity that arguably 'make[s] prostitution easier' within the sweep of the statute."
However, Judge Leon noted that neither Woodhull nor any of the plaintiffs could point to any prosecution that took place based on those terms, which mirror some terms used in the anti-racketeering Travel Act, which has been on the books since the early 1960s, and although he noted that Woodhull attempted to distinguish FOSTA's use of the terms from the Travel Act's use, he nonetheless found it unpersuasive that Woodhull or any of the plaintiffs could legitimately fear prosecution under those terms in FOSTA. He also ruled that if an ISP (or any of the plaintiffs) actually promoted or facilitated prostitution, such actions would not be protected by the First Amendment and would be criminal, but furthermore, that to prosecute anyone under FOSTA, the government would have to prove that the defendant "intended to 'explicitly further[]' a specific unlawful act"—a legal requirement called "mens rea."
First Amendment attorney Reed Lee has studied Judge Leon's opinion and previously told AVN correspondent Michael French that the opinion is not as bad as it seems, and might actually, if inadvertently, be beneficial for the parties.
"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)," Lee opined. "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."
If Lee is correct in his interpretation of Judge Leon's ruling, and if the Court of Appeals upholds that ruling using the same or similar language, as frightening as FOSTA appears to be at first glance, the courts may have so narrowed the possible interpretations of FOSTA's language that not only are Woodhull and the other plaintiffs safe from prosecution under it, but many of the websites and other information sources that have shut down over fear of such prosecution may be able to reopen and continue their previous free speech activities.
Pictured: The E. Barrett Prettyman Federal Courthouse where the case will be argued. Photo By Agnostic Preachers Kid / Wikimedia Commons
