Washington D.C.—On Friday, Sept. 20, at 9:30 am, attorneys for five plaintiffs suing the government to block enforcement of FOSTA will ask a federal appeals court to reverse a judge’s decision to dismiss the case.

The plaintiffs—Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, and individuals Alex Andrews and Eric Koszyk—contend that FOSTA, a federal law passed in 2018 that expansively criminalizes online speech related to sex work and removes important protections for online intermediaries, violates their First Amendment rights.

Electronic Frontier Foundation (EFF) is counsel for the plaintiffs along with co-counsel Davis Wright Tremaine LLP, Walters Law Group, and Daphne Keller.

FOSTA, or the Allow States and Victims to Fight Online Sex Trafficking Act, 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 of the Communications Decency Act. 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.

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.

Attorney Robert Corn-Revere, counsel for the plaintiffs, will argue at a hearing on Sept. 20 that the 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. FOSTA specifically authorized enforcement by state prosecutors and private litigants, vastly increasing the risk of being sued under the statute and greatly exacerbating the speech-chilling effects of the law. FOSTA has also reportedly generated increased risks for sex workers and frustrated law enforcement efforts to investigate trafficking.

Oral argument in Woodhull Freedom Foundation v. U.S.

Robert Corn-Revere of Davis Wright  Tremaine LLP

Friday, Sept. 20, at 9:30 am

E. Barrett Prettyman U.S. Courthouse and William B. Bryant Annex
Courtroom 31
333 Constitution Avenue, NW
Washington, DC 20001

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