DC Circuit FOSTA Ruling Lets a Bad Law Stay on the Books, But Offers Meaningful Protection for Some Sex Work Forums and Sex Workers Using Online Services

The Court of Appeals for the D.C. Circuit on July 7 affirmed the dismissal of Woodhull Freedom Foundation v. US, the constitutional challenge to FOSTA. That’s certainly disappointing: this bad law will now stay on the books.

But the good news is that FOSTA stays on the books in a more limited manner: the court sharply narrowed FOSTA to address the arguments that its overly broad reach criminalized protected speech and caused a massive chilling effect on online speech. That’s a significant improvement. It means that sex workers, advocates for sex workers’ rights, and other online speakers are better protected from prosecution, or from the chilling effects that come with fear of prosecution. But the court’s opinion still leaves many questions unanswered and uncertainty for the online intermediaries upon whom sex workers rely.

 FOSTA, the Allow Victims to Fight Online Sex Trafficking Act, contained multiple speech-restricting provisions. Most significantly, it:

• Created new federal criminal and civil liability for anyone who “owns, manages, or operates an interactive computer service” and speaks, or hosts third-party content to “promote or facilitate the prostitution of another person.”
• Expanded criminal and civil liability to treat any online speaker or platform that allegedly assists, supports, or facilitates sex trafficking as “participating in a venture” with individuals directly engaged in sex trafficking.
• Carved out significant exceptions to the immunity provisions of 47 U.S.C. § 230 to create new criminal and civil liability for online platforms based on whether the content expressed by their users’ speech might be seen as promoting or facilitating prostitution, or as assisting, supporting, or facilitating sex trafficking.

Five plaintiffs filed a constitutional challenge to the law on the grounds that it silences protected speech by muzzling online speakers and forcing online intermediaries to censor their users. The lawsuit was supported by expert declarations and amicus briefs that showed how the law led numerous legally operated online sites to shut down, thwarting both harm reduction efforts and law enforcement, and forcing sex workers back on to the streets

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