Appeals Court Panel Seems Skeptical That FOSTA Doesn't Violate the First Amendment
The 2018 law criminalizes websites that "promote or facilitate" prostitution. Two of three judges on the panel pushed back against government claims that this doesn't criminalize speech.
Will the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) finally be declared unconstitutional? After years of being panned by sex workers, civil libertarians, tech companies, U.S. lawmakers, and even law enforcement, opponents of the 2018 law face the best shot yet of seeing its demise.
That shot comes in the form of a court case before the U.S. Court of Appeals for the District of Columbia Circuit. Last week, the court heard arguments from those challenging FOSTA and from the government lawyers defending it.
Those challenging the law—Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, massage therapist Eric Koszyk, and sex worker rights activist Jesse Maley (also known as Alex Andrews)—have been fighting this battle in the courts since 2018. Their suit was initially dismissed by a district court for lack of standing, then revived by the D.C. Circuit in 2020, then again dismissed by the district court—which suggested FOSTA doesn't target speech but conduct and therefore can't violate the First Amendment. Now the case is back before the D.C. Circuit Court.
David Greene, senior staff attorney and civil liberties director at the Electronic Frontier Foundation and one of the lawyers helping challenge the law, says he can't predict how the court will rule.
"But I was very encouraged that the court seemed to have read the papers closely, had a very good understanding of the arguments that were being made, were taking it very seriously and all the things you really wanna see … to show that they understand the importance and gravity of the issue," Greene tells Reason.
Among other provisions, FOSTA created the new federal crime of owning, managing, or operating an "interactive computer service" with "the intent to promote or facilitate the prostitution of another person."
In court last week, U.S. attorneys still clung to the argument that FOSTA merely targets illegal conduct, not protected speech.
The government has "essentially made a single argument, which is that FOSTA is essentially just an aiding and abetting statute, despite the language that it uses—it doesn't use the terms and abetting—and as a result of that, it's constitutional," explains Greene. And last week in court, "they got a lot of pushback against that from at least two of the judges," he says.
"In my mind, it's not an aiding-and-abetting law. We know how to write 'em when we want to," Harry Edwards, one of the three judges on the panel, said during the hearing. "This doesn't look like anything that I understand to be an aiding-and-abetting law."
"That immediately tells me the government's got great concern that the statute, as actually written, has problems—so let's make it something that it's not," Edwards continued. He characterized U.S. attorneys' reasoning as "let's call it aiding and abetting, and maybe we can cause the court to believe that the reach of the statute is limited because we've called it something that it's not."
("We disagree with the position you just laid out, that this is not an aiding-and-abetting statute," a lawyer for the government responded.)
Greene and his team argue that FOSTA violates the First Amendment "because it's overbroad [and] can apply to a substantial amount of protected speech," he explains. "And that's principally because the language that it uses includes not just things that are in themselves the commission of illegal acts of sex trafficking or prostitution." Rather, "it uses language like 'promote or facilitate the prostitution of another person' without being clear on what that means."
The language of FOSTA "can be reasonably read to include protected [speech]—and not just protected speech, but speech that's really highly important, like providing harm reduction, health and safety information to sex workers, to advocating on particular sex workers' behalf, to advocating for decriminalization, and things like that," Greene says.
During last week's hearing, Judge Patricia Millett pushed back on the government's claims that FOSTA didn't criminalize advocating for legal prostitution.
"If someone actively promotes on their website the legalization of prostitution … how is that not [promoting prostitution]?" she asked.
"Because it's just promoting prostitution in general, as a concept," a U.S. attorney replied.
"No, it's not," Millett interrupted. "It says, I want—here's all my friends who are prostitutes … here's 20 of them, I want to make it legal for them to engage in prostitution. … How does that not promote the prostitution [of another person]?"
Greene says he doesn't expect a ruling for at least two months, and it could possibly take even longer considering the fact that several cases pending before the U.S. Supreme Court might be relevant. "Those decisions will unlikely be out before June, so I … wouldn't be surprised if they wait until after those decisions came out."
These cases include Gonzalez v. Google, which concerns Google's protection under Section 230 of the Communications Decency Act, as well as Twitter v. Taamneh and United States v. Hansen.
The Google case was brought by Reynaldo Gonzalez, whose daughter was killed in a terrorist attack in 2015. Gonzalez argues that because Google-owned YouTube's algorithms allegedly recommended content that supported the Islamic State, Section 230 shouldn't protect Google from civil liability.
"The Section 230 issues in our case are different from the ones in that case, but still, it's the first time the Supreme Court's gonna look at the statute," notes Greene.
The Hansen case concerns a federal law that prohibits encouraging or inducing someone to come to the U.S. illegally. Those challenging the law argue that this language is overbroad and violates the First Amendment.
"In FOSTA, the language that's frequently used is 'promote' or 'facilitate.' In the Hansen case, it's 'encourage' or 'induce.' And, in some ways, the government is making a similar argument — that they should be read as equivalent to aiding and abetting, even as Congress used different words," says Greene.
It's certainly not necessary for the D.C. Circuit Court to wait on these rulings, of course, but the Supreme Court could potentially provide relevant legal insights when deliberating over them.
