Victory! Lawsuit Challenging FOSTA Reinstated by Court

SAN FRANCISCO–A lawsuit challenging the constitutionality of FOSTA, a federal law that has driven marginalized communities and speech about sex and sex work offline, was reinstated today in a court ruling that recognizes the statute poses a substantial threat to free speech.

The U.S. Court of Appeals for the District of Columbia ruled that two plaintiffs in the lawsuit—brought by Woodhull Freedom Foundation, Human Rights Watch, Alex Andrews, the Internet Archive, and Eric Koszyk to block enforcement of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA)—had “standing” to pursue their constitutional challenge to the statute. The lawsuit argues that the act expansively criminalizes online speech related to sex work and removes important protections for online intermediaries in violation of their First Amendment rights. The plaintiffs are represented by EFF, Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.

“We are pleased the court recognized that the law’s undefined and vague terms can sweep up constitutionally protected speech and potentially lead to federal, state, and local criminal prosecution, as well as civil liability,” said EFF Staff Attorney Aaron Mackey. “The court’s ruling recognizes that plaintiffs face a substantial threat of broad criminal and civil liability merely for speaking online or hosting forums that support sex workers.”

FOSTA makes it a felony to use or operate an online service with the intent to “promote or facilitate the prostitution of another person,” vague terms with wide-ranging meanings that can include speech that makes sex work easier in any way. FOSTA also expanded the scope of other federal laws on sex trafficking to include online speech, and reduced statutory immunities previously provided under  Section 230 (47 U.S.C. § 230). The plaintiffs sued to block enforcement of the law because its overbroad language sweeps up Internet speech about sex, sex workers, and sexual freedom, including harm reduction information and speech advocating decriminalization of prostitution.

Craigslist and Reddit have shut down personals sections, even non-sexual ones, and sites supporting sex workers have censored themselves for fear of running afoul of the law.

A federal judge dismissed the case, ruling that the plaintiffs lacked “standing” because they failed to prove a credible threat that they would be prosecuted for violating FOSTA. Because the court dismissed the case on procedural grounds, it did not rule on whether FOSTA is constitutional.

The appeals court reversed, finding that plaintiffs Alex Andrews and Eric Koszyk had legal standing. The court ruled that Andrews, who runs a website for sex workers called Rate That Rescue, faced a credible threat that FOSTA would be enforced against her. With respect to Koszyk, the court ruled that he had shown that FOSTA harmed his ability to advertise his therapeutic massage business because, in the wake of FOSTA’s passage, Craigslist shut down the section on its site that hosted his advertisements and prevented him from posting them anywhere on its site.

EFF and co-counsel in the case argued that plaintiffs don’t have to wait until they face prosecution before challenging a law regulating speech when, as here, the vague and overbroad prohibitions of the law are causing numerous speakers to censor themselves and their users.

“The court agreed that the plaintiffs have shown that their First Amendment rights are under threat,” said Mackey. “We look forward to giving them their day in court to show that FOSTA is unconstitutional.”

For the decision:
https://www.eff.org/document/woodhull-appeals-court-ruling

For more on this case:
https://www.eff.org/cases/woodhull-freedom-foundation-et-al-v-united-states