San Francisco – Two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist have filed a lawsuit asking a federal court to block enforcement of FOSTA, the new federal law that silences online speech by forcing speakers to self-censor and requiring platforms to censor their users. The plaintiffs are represented by the Electronic Frontier Foundation (EFF), Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.
In Woodhull Freedom Foundation et al. v. United States, the plaintiffs argue that FOSTA is unconstitutional, muzzling online speech that protects and advocates for sex workers and forces well-established, general interest community forums offline for fear of criminal charges and heavy civil liability for things their users might share.
FOSTA, or the Allow States and Victims to Fight Online Sex Trafficking Act, was passed by Congress in March. But instead of focusing on the perpetrators of sex trafficking, FOSTA goes after online speakers, imposing harsh penalties for any website that might “facilitate” prostitution or “contribute to sex trafficking.” The vague language and multiple layers of ambiguity are driving constitutionally protected speech off the Internet at a rapid pace.
For example, plaintiff the Woodhull Freedom Foundation works to support the health, safety, and protection of sex workers, among other things. Woodhull wanted to publish information on its website to help sex workers understand what FOSTA meant to them. But instead, worried about liability under FOSTA, Woodhull was forced to censor its own speech and the speech of others who wanted to contribute to their blog. Woodhull is also concerned about the impact of FOSTA on its upcoming annual summit, scheduled for next month.
“FOSTA chills sexual speech and harms sex workers,” said Ricci Levy, executive director Woodhull Freedom 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.”
FOSTA calls into serious question the legality of online speech that advocates for the decriminalization of sex work, or provides health and safety information to sex workers. Human Rights Watch (HRW), an international organization that is also a plaintiff, advocates globally for ways to protect sex workers from violence, health risks, and other human rights abuses. The group is concerned that its efforts to expose abuses against sex workers and decriminalize voluntary sex work could be seen as “facilitating” “prostitution,” or in some way assisting sex trafficking.
“HRW relies heavily on individuals spreading its reporting and advocacy through social media,” said Dinah Pokempner, HRW General Counsel. “We are worried that social media platforms and websites may block the sharing of this information out of concern it could be seen as demonstrating a “reckless disregard” of sex trafficking activities under FOSTA. This law is the wrong approach to the scourge of sex trafficking.”
But FOSTA doesn’t just impede the work of sex educators and activists. It also led to the shutdown of Craigslist’s “Therapeutic Services” section, which has imperiled the business of a licensed massage therapist who is another plaintiff in this case. The Internet Archive joined this lawsuit against FOSTA because the law might hinder its work of cataloging and storing 330 billion web pages from 1996 to the present.
Because of the critical issues at stake, the lawsuit filed today asks the court to declare that FOSTA is unconstitutional, and asks that the government be permanently enjoined from enforcing the law.
“FOSTA is the most comprehensive censorship of Internet speech in America in the last 20 years,” said EFF Civil Liberties Director David Greene. “Despite good intentions, Congress wrote an awful and harmful law, and it must be struck down.”
For the full complaint in Woodhull v. United States:
For more on FOSTA: