WASHINGTON – The Woodhull Freedom Foundation announced Thursday that along with Human Rights Watch, the Internet Archive and two individual plaintiffs, it has filed a federal lawsuit challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), under the First and Fifth Amendments.
“FOSTA chills sexual speech and harms sex workers,” Woodhull President and CEO Ricci Levy said in a statement released by the foundation. “It makes it harder for people to take care of and protect themselves, and, as an organization working to protect people’s fundamental human rights, Woodhull is deeply concerned about the damaging impact that this law will have on all people.”
Signed into law by President Donald Trump in April, FOSTA “creates new federal criminal and civil liability for anyone who ‘owns, manages, or operates an interactive computer service’ and speaks, or hosts third-party content, with the intent to ‘promote or facilitate the prostitution of another person,’” the Electronic Frontier Foundation noted in a post announcing the EFF’s involvement in the case.
The EFF also said the enactment of FOSTA created “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 and viewpoints expressed by their users’ speech might be seen as promoting or facilitating prostitution, or as assisting, supporting or facilitating sex trafficking.”
In its complaint, Woodhull takes issue with the breadth and vagueness of FOSTA’s language and the speech-chilling effects of the legislation.
“Using expansive and undefined terms, FOSTA’s criminal penalties and ruinous civil liability turn entirely on what content and viewpoints online speakers publish, the content and viewpoints that a platform allows to be posted, and the editorial policies a platform uses in determining whether to block, modify or remove material created by others,” the complaint states.
As Woodhull notes in the complaint, FOSTA “has already muzzled countless online speakers and led to closure of many online platforms that hosted their speech.”
“By this action, Plaintiffs seek to have the Act declared unconstitutional under the First and Fifth Amendments of the United States Constitution, both on its face and as applied to Plaintiffs, and to enjoin the government from enforcing the Act,” the complaint states.
The complaint urges the court to apply strict scrutiny in evaluating FOSTA’s constitutionality, arguing that the law’s “prohibitions are entirely content-based, imposing harsh criminal penalties and authorizing heavy civil liability for online publishers who allegedly ‘promote’ or ‘facilitate’ the ‘prostitution’ of another person, or who act in ‘reckless disregard’ that their actions ‘contribute to sex trafficking.’”
“The threat to online freedom of expression is significant,” the complaint asserts. “As the Supreme Court explained in (Reno v. ACLU) the Internet burst onto the scene as a unique and wholly new global medium of human communication that gave individuals access to information as ‘diverse as human thought’ on topics ranging from ‘the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls.’ It also naturally enabled people to communicate about sex, which the Court has acknowledged is ‘a great and mysterious motive force in human life’ that ‘indisputably [has] been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.’”
The plaintiffs are represented in the case by Davis, Wright Tremaine, the Walters Law Group, the EFF and Daphne Keller.
“Woodhull, and the other plaintiffs, have shown tremendous courage in challenging FOSTA, and taking a stand against online censorship,” Larry Walters, managing partner of the Walters Law Group, told YNOT. “The adult industry has already felt the effects of FOSTA through increased moderation by online platforms and closure of numerous sites. Unless the law is enjoined by the court, this will be just the beginning. Ruinous civil lawsuits and criminal prosecutions are on the horizon. I am fortunate to be part of the highly-talented legal team bringing this important suit.”
