WASHINGTON — Ricci Levy, President of the Woodhull Freedom Foundation, announced that the sexual rights group has filed a new appellate brief in the Foundation’s challenge to the controversial “Stop Enabling Sex Traffickers Act” (SESTA) and “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA) legislative package that carved out exceptions to Section 230’s safe harbor for interactive computer services and has chilled sex work-related expression online.
“FOSTA is brutal, unconstitutional law that continues to destroy lives in its effort to silence sex workers,” Levy said in a press release. “This is a long battle, but the stakes are enormous. We look forward to making our case before the DC Circuit.”
Legal counsel for Woodhull filed the appellate brief with the U.S. Court of Appeals for the District of Columbia Circuit. This is the latest brief in a four-year battle to overturn the statute, which was signed into law by former Republican President Donald J. Trump and became effective on April 11, 2018. Woodhull is joined in the appealing class by Human Rights Watch, the Internet Archive and two individual plaintiffs.
Woodhull and the appealing plaintiff class in the case of Woodhull et al v. United States challenge FOSTA-SESTA and its damage to online freedom of expression and sexual freedoms. It’s an important lawsuit, alleging in part that FOSTA-SESTA violates the First and Fifth Amendments of the U.S. Constitution.
The U.S. government contested Woodhull Freedom Foundation’s initial lawsuit in 2018, which asked the court to grant a preliminary injunction preventing FOSTA-SESTA from being enforced. An appellate court affirmed the right of the plaintiffs to bring a legal challenge against the law following extended legal back-and-forth between their counsel and the government.
“The DC Circuit’s de novo review will allow it to take a fresh look at the constitutional issues raised by FOSTA,” said Lawrence G. Walters, one of the lawyers representing Woodhull. “We have previously won in the DC Circuit, and are confident in the strength of our appeal. FOSTA’s Section 230 exemption sets a dangerous precedent for government censorship of other types of disfavored speech.”
Walters is joined by First Amendment attorney Bob Corn-Revere of Davis Wright Tremaine LLP, Aaron Mackey, Corynne McSherry, and David Greene of the Electronic Frontier Foundation, and Daphne Keller of the Stanford Cyber Law Center.
When the law was passed, Section 230 of the Communications Decency Act of 1996 established an expansive “safe harbor” immunizing interactive computer services, a category that encompasses websites and social media platforms, from liability for a broad range of potentially illegal speech published on their platforms by third-party users, including crimes and civil complaints involving the promotion or facilitation of prostitution. Critics say FOSTA/SESTA has done irreparable harm to sex workers, both by chilling their own expression and by effectively denying them outlets for vetting their clientele, as websites like Backpage have been shut down and others have dropped sections and services out of concern for potential violations of the law.
Anti-porn groups such as the National Center on Sexual Exploitation (formerly known as “Morality in Media”) lobbied in favor of FOSTA-SESTA as it made its way through Congress, while groups like the American Civil Liberties Union, Electronic Frontier Foundation, Wikimedia Foundation, and the Center for Democracy and Technology opposed its passage. The Free Speech Coalition, a trade group representing the adult industry, also opposed the bill and advocates for its repeal.
