Due to an editing error, a draft version of this article was published prematurely.
Internet websites and forums are continuing to censor speech with adult content on their platforms to avoid running afoul of the new anti-sex trafficking law FOSTA. The measure’s vague, ambiguous language and stiff criminal and civil penalties are driving constitutionally protected content off the Internet.
The consequences of this censorship are devastating for marginalized communities and groups that serve them, especially organizations that provide support and services to victims of trafficking and child abuse, sex workers, and groups and individuals promoting sexual freedom. Fearing that comments, posts, or ads that are sexual in nature will be ensnared by FOSTA, many vulnerable people have gone offline and back to the streets, where they’ve been sexually abused and physically harmed.
Plaintiffs Woodhull Freedom Foundation, Human Rights Watch, Alex Andrews, the Internet Archive, and Eric Koszyk filed suit last June to invalidate the law. A federal judge dismissed the lawsuit last summer without reaching the merits of our arguments that the law is unconstitutional. Instead the judge found that none of the plaintiffs had standing—meaning could not show they have or will be harmed— to challenge the law. EFF is co-counsel for plaintiffs with Davis, Wright & Tremaine, Walters Law Group, and Daphne Keller.
That decision was wrong and the plaintiffs are appealing it. They filed their opening brief February 20 explaining how the trial judge got it wrong and why the law should be enjoined. And several organizations filed amicus briefs in the appeals court last week supporting these arguments.
Plaintiffs argue that they need not wait until they face a FOSTA enforcement action to challenge in court a law regulating speech. Standing should be determined according to the plaintiffs’ interpretation of the law, not the government’s. The plaintiffs emphasize that they have already been harmed by FOSTA, for example, Woodhull and Andrews, by self-censoring for reasonable fear of prosecution under the law, the Internet Archive by being burdened by uncertain moderation obligations, Koszyk by losing his platform for advertising when Craigslist shut down its personals and Therapeutic Services sections because of FOSTA. This is more than enough to establish standing, especially under the liberal standing requirements in First Amendment challenges.
Plaintiffs' arguments were well supported by the four amicus curiae briefs. Here is a rundown of the arguments presented by amici.
Laws chilling speech require special consideration.
As we argued in our opening brief, when violations of the First Amendment are at stake, courts have an obligation to take a broad view of who will be affected by any law or regulation that threatens free speech. The Institute for Free Speech agreed and expounded on this issue in its brief. Courts have held that laws implicating First Amendment rights can be challenged before they are enforced as long as there is a credible threat that speech will be chilled. And there is ample evidence that FOSTA has caused organizations to censor their speech (more on that below).
Government attorneys defending FOSTA in the case convinced the trial judge not only that the plaintiffs lacked standing, but also that the plaintiffs’ examples of chilled speech would not run afoul of FOSTA. That’s no guarantee that the government won’t take FOSTA enforcement against them, and does nothing to stop states attorneys general or private individuals from hauling the plaintiffs, and others like them, into court seeking damages or criminal prosecution. As the institute’s lawyers said:
This is precisely the kind of case for which First Amendment standing doctrine was developed. It is a pre-enforcement challenge to a statute of startling scope and uncertain meaning, directly regulating a major frontier of First Amendment-protected activity. And Congress chose to decentralize its enforcement, permitting numerous parties, including private litigants and state attorneys general, to bring lawsuits against alleged violators.
FOSTA makes it illegal to post content on the Internet that “facilitates” prostitution and also strips Internet sites from legal protections provided by 47 U.S.C. Section 230, part of the Communications Decency Act. Section 230 afforded websites liability only for content they themselves create and publish, shielding websites from liability for speech contained in comments and opinions submitted to them by third parties.
FOSTA, which stands for Allow States and Victims to Fight Online Sex Trafficking Act, was purported to fight sex trafficking by outlawing ads or other content involving sexual exploitation of minors. But instead of focusing on the perpetrators of sex trafficking, FOSTA goes after online speakers, imposing harsh penalties for any speaker that may use the Internet to “facilitate” prostitution or “contribute to sex trafficking.” Within days of its passage, Craigslist took down its personals section, saying it couldn’t take the risk that someone in the section could be accused of violating FOSTA without jeopardizing other services.
FOSTA is the latest attempt by government to censor adult content
The Center for Democracy and Technology urges the court to grant the preliminary injunction against FOSTA, pointing out in its brief that the government has a long history of trying to outlaw adult content, and in every instance those attempts were rejected by the Supreme Court. The court recognized that laws that threatened to chill protected speech aren’t constitutional. With the advent of the Internet, Congress added Section 230 of the Communications Decent Act to protect websites and online publishers from liability for content—whether benign or offensive—by third-party speakers. FOSTA tosses Section 230 aside, and marks the first time Congress has ever narrowed the scope of its protections. As CDT says in its brief:
Without limits on liability for hosting user speech, such intermediaries are likely to react by significantly limiting what their users can say‚ including a potentially wide range of lawful speech, from discussions on dating forums about consensual adult sex, to resources for promoting safety among sex workers. Indeed, as discussed in Appellants’ brief, that has already started to happen, with platforms restricting access to information that promotes public health and safety, political discourse, and economic growth.
FOSTA-related censorship is growing every day
Lawyers for 11 rights-based organization advocating for sex workers, survivors of trafficking and other abused communities, point out that FOSTA epitomizes the continual conflation of sex work and trafficking or prostitution. Voluntary sex work, which includes webcam sex, sensual bodywork, and adult film entertainment, are legal. You may be offended by their websites or find their posts inappropriate, but it is protected speech. And the vague language of FOSTA means it could very easily be misconstrued as a FOSTA violation.
So people who work in those communities have censored themselves online or found forums they’ve used shuttered because of FOSTA. They have lost income or are unable to find community, support, and health and harm reduction services online. Social media platforms like Tumblr have removed all forms of graphic sexual content, which impacts the most stigmatized sexual minorities such as LGBT, transgender, and intersex communities. Self-censorship because of FOSTA has had violent consequences: A sex worker, fearful of using the Internet for screening because of FOSTA, met with a new client, and ended up gang-raped, beaten, and robbed, according to advocates that provided information for the filing. Said the rights groups:
FOSTA, like other laws before it, has had a devastating impact on both the individuals it was intended to protect and some of the most marginalized communities in our society … Many sex workers are fearful to communicate online about information such as potentially harmful clients or places to avoid because this could be considered ‘promoting prostitution.’ While this was true pre-FOSTA, the fear that such life- saving speech could be targeted is due to FOSTA.
Reddit, Techdirt.com, and Engine Advocacy, a nonprofit tech policy organization advocating for start-ups, told the appeals court about the burden FOSTA has imposed on websites that host user comments. Reddit, for example, felt pressured by FOSTA to close a forum about harm reduction and safety for sex workers to minimize the threat of liability, even though doing so may have increased the actual threat to sex workers that FOSTA was ostensibly designed to reduce. Some forums won’t closely monitor adult content, fearing that if monitors learn too much about the subjects being discussed that could potentially violate FOSTA, they could be held liable for facilitating or contributing to sex trafficking. As the groups say in the brief:
Broadly written rules almost necessarily result in lawful content being removed because there is no way for Reddit to weigh all the voluminous expression it reviews in a sufficiently nuanced and contextualized way to eliminate the risk of content targeted by FOSTA slipping through.
This is exactly the kind of censoring behavior that plaintiffs are suing over. It’s real, and it’s happening all the time on the Internet. The court must allow the plaintiffs' challenge to go forward.