The Fight to Overturn FOSTA, an Unconstitutional Internet Censorship Law, Continues

More than four years after its enactment, FOSTA remains an unconstitutional law that broadly censored the internet and harmed sex workers and others by chilling their ability to speak, organize, and access information online.

And the fight to overturn FOSTA continues. Last week, two human rights organizations, a digital library, a sex worker activist, and a certified massage therapist filed their opening brief in a case that seeks to strike down the law for its many constitutional violations.

Their brief explains to a federal appellate court why FOSTA is a direct regulation of people’s speech that also censors online intermediaries that so many rely upon to speak—classic First Amendment violations. The brief also details how FOSTA has harmed the plaintiffs, sex workers, and allies seeking to decriminalize the work and make it safer, primarily because of its vague terms and its conflation of sex work with coercive trafficking.

“FOSTA created a predictable speech-suppressing ratchet leading to ‘self-censorship of constitutionally protected material’ on a massive scale,” the plaintiffs, Woodhull Freedom Foundation, Human Rights Watch, The Internet Archive, Alex Andrews, and Eric Koszyk, argue. “Websites that support sex workers by providing health-related information or safety tips could be liable for promoting or facilitating prostitution, while those that assist or make prostitution easier—i.e., ‘facilitate’ it—by advocating for decriminalization are now uncertain of their own legality.”

FOSTA created new civil and criminal liability for anyone who “owns, manages, or operates an interactive computer service” and creates content (or hosts third-party content) with the intent to “promote or facilitate the prostitution of another person.” The law also expands criminal and civil liability to classify any online speaker or platform that allegedly assists, supports, or facilitates sex trafficking as though they themselves were participating “in a venture” with individuals directly engaged in sex trafficking.

FOSTA doesn’t just seek to hold platforms and hosts criminally responsible for the actions of sex-traffickers. It also introduces significant exceptions to the civil immunity provisions of one of the internet’s most important laws, 47 U.S.C. § 230. These exceptions create new state law criminal and civil liability for online platforms based on whether their users’ speech might be seen as promoting or facilitating prostitution, or as assisting, supporting or facilitating sex trafficking.

The plaintiffs are not alone in viewing FOSTA as an overbroad censorship law that has harmed sex workers and other online speakers. Four friend-of-the-court briefs filed in support of their case this week underscore FOSTA’s disastrous consequences.

The Center for Democracy & Technology’s brief argues that FOSTA negated the First Amendment’s protections for online intermediaries and thus undercut the vital role those services provide by hosting a broad and diverse array of users’ speech online.

“Although Congress may have only intended the laudable goal of halting sex trafficking, it went too far: chilling constitutionally protected speech and prompting online platforms to shut down users’ political advocacy and suppress communications having nothing to do with sex trafficking for fear of liability,” CDT’s brief argues.

A brief from the Transgender Law Center describes how FOSTA’s breadth has directly harmed lesbian, gay, transgender, and queer people.

“Although FOSTA’s text may not name 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 brief argues. “The overbroad censorship resulting from FOSTA has resulted in real and substantial harm to LGBTQ people’s First Amendment rights as well as economic harm to LGBTQ people and communities.”

Two different coalitions of sex worker advocacy and harm-reduction groups filed briefs in support of the plaintiffs that show FOSTA’s direct impact on sex workers and how the law’s conflation of consensual sex work with coercive trafficking has harmed both victims of trafficking and sex workers.

A brief led by Call Off Your Old Tired Ethics (COYOTE) of Rhode Island published data from its recent survey of sex workers showing that FOSTA has made sex trafficking more prevalent and harder to combat.

“Every kind of sex worker, including trafficking survivors, have been impacted by FOSTA precisely because its broad terms fail to distinguish between different types of sex work and trafficking,” the brief argues. The brief goes on to argue that FOSTA’s First Amendment problems have “made sex work more dangerous by curtailing the ability to screen clients on trusted online databases, also known as blacklists.”

A brief led by Decriminalize Sex Work shows that “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.”

“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,” the brief argues. “Each of these effects has had a devastating impact on already marginalized and vulnerable communities; meanwhile, FOSTA has not addressed nor redressed any of the issues cited as motivation for its enactment.”

The plaintiffs’ appeal marks the second time the case has gone up to the U.S. Court of Appeals for the District of Columbia. The plaintiffs previously prevailed in the appellate court when it ruled in 2020 that they had the legal right, known as standing, to challenge FOSTA, reversing an earlier district court ruling.

Members of Congress have also been concerned about FOSTA’s broad impacts, with senators introducing the SAFE SEX Workers Study Act for the last two years, though it has not become law.

The plaintiffs are represented by Davis, Wright Tremaine LLP, Walters Law Group, Daphne Keller, and EFF.