WASHINGTON, D.C. – At some point in the weeks ahead – and possibly sooner than that phrase suggests – we will see the next major development in Woodhull Freedom Foundation v. U.S., the Woodhull Foundation’s lawsuit challenging the constitutionality of FOSTA/SESTA, the legislative package also known by the longer titles of the two bills it merged, the “Stop Enabling Sex Traffickers Act” and the “Allow States and Victims to Fight Online Sex Trafficking Act.”
Then-President Donald Trump signed the bill into law on April 11, 2018, meaning we marked the third anniversary of the law’s existence just two weeks ago. For a statute that has been around such a relatively short amount of time, FOSTA/SESTA has generated more than its share of reproach – and, according to its critics, more than its share of harm, as well.
As time has passed, “the carnage wrought by the law has become obvious,” attorney Lawrence Walters, part of the legal team representing Woodhull in its lawsuit, recently told YNOT.
“Countless websites have gone dark, moved overseas, or sanitized their user content of any material involving human sexuality,” Walters observed. “At the same time, sex work has become more dangerous, and trafficking has increased.”
While supporters of the bill made extravagant claims about how the legislation would reduce sex trafficking and make it easier for victims to seek restitution from those involved in trafficking them without negatively impacting sex workers or threatening online speech, Walters asserted that “none of the promised benefits of the law have emerged.”
This bleak assessment of the law’s impact raises the stakes of Woodhull’s lawsuit, in which it is joined by Human Rights Watch, the Internet Archive and individual plaintiffs Eric Koszyk, Jesse Maley (AKA “Alex Andrews”), along with amici curiae that include the Center for Democracy & Technology, the Institute for Free Speech and the Freedom Network, among others.
“The legal challenge by Woodhull Freedom Foundation, and others, continues to play out,” Walters said. “All briefing on the constitutionality of FOSTA is complete, and the fate of the law is in the hands of the D.C. district court.”
The law’s critics aren’t limited to sex workers, their advocates or websites that might be caught up in its broad scope. On the anniversary of FOSTA/SESTA, Rep. Ro Khanna (D-Calif.) tweeted that while the bill might have been “intended to curb sex trafficking,” it has had “devastating consequences for sex workers, who have been pushed off of online platforms and into far more unsafe conditions.”
Khanna closed his tweet by asserting “We must repeal FOSTA SESTA.”
3 years ago today, FOSTA-SESTA was signed into law. While it was intended to curb sex trafficking, the bill has had devastating consequences for sex workers, who have been pushed off of online platforms and into far more unsafe conditions. We must repeal FOSTA SESTA.
— Rep. Ro Khanna (@RepRoKhanna) April 11, 2021
One representative from the U.S. House calling for a law’s repeal doesn’t necessarily represent a movement with enough momentum to accomplish the task of repeal, of course – so the best bet for a quick resolution to the problems caused by FOSTA/SESTA remains Woodhull’s lawsuit.
Sadly, for many of those who have been harmed by the law, even if the D.C. district court issues an opinion striking down the law today, that ruling will have come too late.
“The years of damage caused by FOSTA may never be undone,” Walters said. “When Congress acts recklessly, individuals often suffer before courts can right the wrong.”
Making matters worse, Congress appears poised to repeat the errors it made when crafting and enacting FOSTA/SESTA in the first place, by continuing to chip away at the ‘safe harbor’ protections offered under Section 230.
“The first legislative experiment with carving out 230 immunity for content related to prostitution and/or sex trafficking has failed,” Walters said. “Yet, Congress is considering further exceptions to Section 230 immunity. Invalidation of FOSTA is critical both for preservation of constitutionally protected expression on the Internet as well as the precedent it will set for future ill-considered efforts to impose liability on Internet platforms based on user uploaded content.”
Here’s hoping that the D.C. district court sees FOSTA/SESTA as not only failed, but fatally flawed from a constitutional perspective. True, if the court rules in favor of the Woodhull plaintiffs, the government doubtlessly will appeal, so the district court’s decision won’t be the final word. But if the court were to rule against the government, maybe that would at least blunt some of the congressional enthusiasm for continuing to undermine Section 230 and its internet-protective measures will similar bills in the future.
(Maybe.)
