Last Year Saw 'Furthest-Reaching Attempt to Censor Online Speech' Since the 1990s, Say FOSTA Challengers

As the lawsuit against FOSTA hits appeals court, three essays about the law that everyone should read.


David Chestnutt IKON Images/Newscom

The coalition behind a challenge to last year's federal ban on adult advertising isn't giving up. Today, the group—including three nonprofits (Human Rights Watch, the Internet Archive, and the Woodhull Freedom Foundation) and two individuals—filed its opening brief in an appeal to the the U.S. Court of Appeals for the District of Columbia. They say the Fight Online Sex Trafficking Act (FOSTA), passed and signed last year, is unconstitutional and "the furthest-reaching attempt to censor online speech since Congress first attempted to regulate the Internet through anti-indecency provisions" in the 1990s.

"FOSTA makes it easier for federal prosecutors, state law enforcement officials, and civil litigants to impose crushing liability on Internet speech using expansive but undefined terms regarding the 'promotion' or 'facilitation' of prostitution and/or the 'reckless disregard' of conduct that 'contributes to sex trafficking,'" explains the brief, adding that "FOSTA's new, content-based criminal penalties and heavy civil liability for online publishers have already led to substantial diminution of online speech."

A U.S. District Court said the group didn't have standing to bring the case because they couldn't show they had been harmed by the law's passage. But FOSTA has, "on ints face and in its reach and ambiguity," presented "a credible threat of prosecution, and thus has chilled Appellants' speech (and that of numerous non-parties)," says their appeal. It has also "led them to refrain in online speech engaged in freely pre-enactment, and deprived them of previously available online platforms." (Read the whole thing here.)

They're far from the only ones claiming harm from FOSTA's passage. One of the latest examples comes from adult-advertising platform Slixa, which recently held a FOSTA essay contest for sex workers. Slixa was "completely overwhelmed by the volume and quality of thoughtful responses we received," the company said. "It was clear that this community is already profoundly aware of the damaging nature of these laws and well informed on their potential future ramifications."

The first place winner was Lucy Kahn, with "Against FOSTA/SESTA: One Canary's Cry From Inside the Coal Mine." A taste:

Yes, I am a sex worker—and at the same time I am a daughter, a sister, a teacher, an immigrant, a partner, a pet-owner, an Internet user, a US citizen, a woman, a queer person, a, voter, and an artist. Each of us affected by this bill are multi-faceted beings leading complex and interwoven lives at the intersections of many identities and demographics. While currently the impact of FOSTA/SESTA is felt most acutely by those of us participating in the commercial sex trade, this bill affects everyone—sex workers are just the canaries in the coal mine trying to make our warning call before it's too late.

Kahn details how she started work as a dominatrix while in grad school and how online advertising made that possible, as well as enabled her to survive while pursuing a not-yet-lucrative career in art.

"Before last year, it is no exaggeration to say that Backpage single-handedly allowed me to create freedom for myself," Kahn writes in her essay. "By having financial agency through my BDSM work, I was able to dictate the terms of my own labor."

Slixa's first-place runner up essay was "The Death Of The Dabbler and The Erasure Of Sex Work From The Common Internet," by Grace Marie. She writes about how FOSTA has made it impossible for people to do erotic gigs part-time, to flit in and out of sex work as needed, to dabble. "I'm a full-on sex worker, but I started out as a dabbler, and for the first four years of my practice I was almost invisible," she writes.

Aside from a few photos on my Fetlife profile (which read like a personal profile at the time) I was a ghost. I took my sweet time—anonymously cruising Craigslist and Fetlife. Answering anonymous ads from an anonymous email address… Figuring out creative ways to make ends-meet while juggling two other jobs, raising a kid, and going to school. It really is amazing to me that less than a decade ago all the online tools necessary for my survival in this business were free and accessible to women in every city—and not just the big cities catered to by ad sites like The Eros Guide—every city! Craigslist was effectively the anti- pimp: a safe space where adult sex workers from all over the world could freely advertise their offerings and screen clients from the comfort of their homes with no need of a pimp to broker the deal.

Slixa's second runner-up essay was Meghan Peterson's "Global Implications of FOSTA."

"The anti-trafficking complex is a multibillion dollar industry that uses fundamentally imperialistic narratives to advance its cause," writes Peterson, noting three pillars on which it's based:

… sex trafficking as a moral crusade against women's sexuality, anti-migrant narratives that portray traffickers as non-white foreigners intent on harming the West through "invasive" immigration, and fear of organized sex trafficking and crime networks prompted by media. These narratives are additionally often racialized to present women who are trafficked as the migrant "Other" who are stripped of their agency and must be saved. This messaging relies on mythologies surrounding sex work to perpetuate an agenda that allows organizations to receive funding to combat the "evils" of sex trafficking.

In the upcoming weeks, Slixa plans to share more of the essays. "While they may not have placed," the company said, they "were oh, so close and filled with insight and optimism that it would be a shame to leave them unpublished."

CORRECTION: This piece originally said Slixa was also a webcam platform; it's solely advertising.