There's No Way FOSTA Isn't a First Amendment Violation, Says Lawsuit
The case is now on appeal after a lower court said the ban on websites promoting prostitution didn't concern protected speech.
There's no way the Allow States and Victims Fight Online Sex Trafficking Act (FOSTA) doesn't violate the First Amendment, argues a federal lawsuit challenging the law. Among other things, it criminalizes web platforms that facilitate prostitution.
The case is now on appeal to the U.S. Court of Appeals for the District of Columbia Circuit after a lower court said FOSTA did not outlaw or have an effect on protected speech. But a wealth of evidence suggests the lower court was wrong.
"FOSTA has a substantial chilling effect on protected speech, causing numerous online platforms to completely shut down or censor material protected by the First Amendment," argue the Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, massage therapist Eric Koszyk, and sex worker rights activist Jesse Maley (better known as Alex Andrews) in their appeal, the opening brief for which was filed last week.
The group—represented by renowned First Amendment lawyers Robert Corn-Revere and Lawrence Walters—has been fighting in court to stop FOSTA since not long after the law's 2018 passage. Their original lawsuit was dismissed for lack of standing, only to be revived in 2020 by the same court it's before again now. The appeals court reversed the lower court's order last time and sent it back for further proceedings. In March, the district court again dismissed the case, holding this time that FOSTA did not violate the First Amendment.
Now, the plaintiffs are once asking the appeals court to find that the lower court erred.
The government had argued—and the lower court accepted—that FOSTA does not regulate speech but rather conduct and/or a medium for speech. But regulating a medium of communication does target speech, they argue, noting a number of cases where this has been upheld as true. "The government cannot avoid the First Amendment simply by recasting essential speech processes as 'conduct,'" states their opening brief. "Otherwise, it could claim 'publishing a newspaper is conduct because it depends on the mechanical operation of a printing press.'"
Their appeal has garnered ample allies, including tech groups, sex worker rights organizations, criminal justice services, LGBT advocates, and people fighting human trafficking. Briefs supporting the plaintiffs have been filed by the Center for Democracy and Technology, Call Off Your Old Tired Ethics Rhode Island (COYOTE RI), the Transgender Law Center, Decriminalize Sex Work, Old Pros, the Urban Justice Center, Freedom Network, and more than 20 other groups.
A Failed Law
Before delving further into the legal arguments against FOSTA, it's key to understand what it does—and how it's failed. FOSTA's goal, according to supporters, was to stop the online advertising of sex-trafficking victims.
FOSTA has three main provisions. The first created a new federal crime, making it illegal to own, manage, or operate a web-based "interactive computer service" with "the intent to promote or facilitate the prostitution of another person." A violation is punishable by up to 10 years in prison or up to 25 years if the accused "promotes or facilitates the prostitution of 5 or more person" or "contributed to sex trafficking."
FOSTA also expanded the parameters of the federal criminal law against sex trafficking, applying it to not just underlying conduct that would violate the law (that is, recruiting, enticing, harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, or soliciting someone for a commercial sex act if they are under age 18 or have been forced, defrauded, or coerced). Now, it also includes benefiting from "participation in a venture" that violates the law. This might seem like a small change, but it actually allows for drastically expanded reach. For instance, participation in a venture claims are at the heart of a lawsuit accusing Twitter of sex trafficking because a user shared a link to a sex video (hosted off of Twitter) featuring teenagers.
FOSTA's final big change was to amend Section 230 of federal communications law, which provides some protection against legal liability for web platforms that deal in user-generated content. Section 230 doesn't protect against federal criminal charges but does help tech companies avoid private civil lawsuits and state criminal prosecutions. FOSTA removed this protection for any claims involving allegations of sex trafficking—again, something that may seem like no big deal which actually has huge implications for all sorts of internet platforms and online speech more generally. ("FOSTA's Section 230 exemption sets a dangerous precedent for government censorship of other types of disfavored speech," Walters said in a statement.)
Lawmakers like to brag that FOSTA indeed stopped sex trafficking ads. But those claims are based on half-truths and distortions, suggests the Washington Post fact-checker Glenn Kessler. And even if it did stop some ads, it doesn't follow that it stopped sex trafficking.
A wealth of evidence—from local police anecdotes to federal data—suggests that FOSTA has made finding and stopping sex trafficking more difficult, while also putting people in the sex trade more at risk.
A series of sex worker surveys COYOTE RI has conducted since FOSTA passed provide "compelling evidence that FOSTA has harmed those it was intended to help," according to the brief filed by COYOTE RI and some other sex worker rights groups. Because of the way FOSTA made allowing online speech related to sex work risky, it diminished sex workers' ability to find clients, screen clients, and warn each other about abusive customers, making them "more vulnerable to pimps and traffickers who can provide an established clientele, alternative advertising strategies, or housing," states the brief.
"Overall, 40% of respondents reported an increase in force, fraud, and coercion within the industry – the definition of sex trafficking – after FOSTA went into effect," and this percentage rose to 59 percent among victims of trafficking. "In addition, law enforcement lost the ability to stop individual sex traffickers because US-based sites shut down, leading traffickers to advertise on foreign sites that are beyond the subpoena power of American courts," the groups add.
While making it harder to prosecute sex traffickers, it's been entirely unnecessary for prosecuting websites. A 2021 report from the Government Accountability Office noted that, since 2014, the Department of Justice has filed at least 11 cases against websites that were related to sex work advertising, and in only one case—the 2020 prosecution of Cityxguide.com—did FOSTA factor in. Meanwhile, state attorneys general (who pressed for FOSTA) have yet to use it, and civil lawsuits that invoke FOSTA have been largely frivolous, targeting companies—like the newsletter service MailChimp—far removed from any potential violence or abuse.
It's so bad that some lawmakers want to consider repealing FOSTA.
"What this legislation did was draconian," Rep. Ro Khanna (D–Calif.) told me in 2019. "It did not just go after bad actors; it went after sex workers' livelihood and safety." Khanna's bill to study the effects of FOSTA was first introduced in 2019 and reintroduced this year, with Rep. Barbara Lee (D–Calif.) as a co-sponsor and Elizabeth Warren (D–Mass.) and Ron Wyden (D–Ore.) introducing a companion bill in the Senate. The aim of the bill is to move toward eventual repeal. But so far, it's not gained traction in Congress.
That means the legal challenge against FOSTA may be the best—or only—route forward.
Overbroad and Unconstitutionally Vague
FOSTA violates the First Amendment because it's "an overbroad restriction on protected speech" that relies on "unconstitutionally vague" terms, suggest Woodhull et al. in their appeal. Its "broad and poorly defined restrictions on Internet speech and selective removal of immunity for online intermediaries imposes an unconstitutional chilling effect on protected expression."
They also object to FOSTA's retroactive application—entities can be punished under FOSTA for content that was posted before FOSTA became law. This, they argue, violates the due process clause of the Constitution.
The groups note that the text of FOSTA does not define "promotes," "facilitates," "prostitution," or "contribute to sex trafficking." This leaves room for a wide variety of conduct to fall under FOSTA's purview. (Again, see the lawsuit against Twitter.)
Does an account that doesn't directly mention sex for pay still "promote" prostitution if it's for a known sex worker? What if that sex worker sticks to strictly legal activities, like putting on webcam shows or domming? Do ads for legal sex work that leads to abuse count as contributing to sex trafficking? Even content pressing for the decriminalization of prostitution or promoting legal expression like pornography could get swept up in FOSTA's wide reach. This broadness and vagueness make it prudent for digital platforms to proactively censor all sorts of legal speech as a precaution.
Woodhull and company note that "websites that hosted personals ads, community forums devoted to discussions of sexuality and lawful adult sexual relationships, speech about non-sexual massage therapy and other non-sexual services, as well as dating sites" were all caught up in the chilling effect of FOSTA. For instance, Craigslist eliminated personals ads, and Reddit started removing certain forums related to sex.
"Given the scale of user-generated content uploaded to the Internet, many online platforms depend upon automated (and inherently blunt) tools to moderate undesirable speech," notes the Center for Democracy and Technology (CDT) in its brief. But because "those tools cannot be deployed with surgical precision and cannot reliably distinguish between unlawful and borderline speech," they risk having "wide-reaching chilling effects on constitutionally protected and beneficial speech, as intermediaries, fearing their own liability, crack down on user speech broadly in service of removing what is unlawful."
Online speech, therefore, should be subject to the highest protection from government censorship—and historically has been by U.S. courts, argues the CDT. "FOSTA is no different than other failed efforts to censor internet speech," its brief states. And "just like previous efforts to regulate the content of speech on the internet, FOSTA does not pass constitutional muster."
In upholding FOSTA's constitutionality, the district court suggested that promote and facilitate do not describe speech but conduct. In their appeal, Woodhull et al. offer multiple lines of argument against that view.
For one thing, "there would be little reason to suspend immunity under Section 230—which protects platforms from claims treating them as the 'publisher or speaker' of content posted by users—if FOSTA were not about punishing acts of publication and speech," they write. And "while 'promote' and 'facilitate,' on their face, could apply either to conduct or to speech, here, they target speech in almost all their applications because they apply specifically to the operation of an online computer service."
They note that district judges defined facilitate as "to make easier or less difficult, or to assist or aid." But such terms definitely could implicate speech—for instance, "websites that enable sex workers to report violence or harassment, or to circulate 'bad date' lists, no doubt makes their jobs 'easier' or 'less difficult.'"
The example showcases one of the many ways FOSTA could implicated protected First Amendment speech, not just "unprotected speech integral to criminal activity," as the district court contended.
Like other censorship laws, this one seems to come down hardest on historically marginalized groups and people in vulnerable circumstances.
A brief from the Transgender Law Center states that FOSTA has had a "real and substantial impact on lesbian, gay, bisexual, transgender and queer (LGBTQ) people, particularly transgender and gender non-conforming (TGNC) people."
While FOSTA doesn't directly mention gender or sexual orientation, "FOSTA's regulation of speech furthers the profiling and policing of LGBTQ people, particularly TGNC people, as the statute's censorial effect has resulted in the removal of speech created by LGBTQ people and discussions of sexuality and gender identity," the group's brief states, calling it a "continuation of a long history of the silencing and oppression of LGBTQ people through vague and overbroad laws."
"The limitations on free speech caused by FOSTA have essentially censored harm reduction and safety information sharing, removed tools that sex workers used to keep themselves and others safe, and interrupted organizing and legislative endeavors to make policies that will enhance the wellbeing of sex workers and trafficking survivors alike," notes Decriminalize Sex Work and other sex worker rights organizations in their brief supporting the current appeal. "FOSTA is part of a legacy of federal and state laws that have wrongfully conflated human trafficking and adult consensual sex work while overlooking the realities of each."