The Court of Appeals for the D.C. Circuit on July 7 affirmed the dismissal of Woodhull Freedom Foundation v. US, the constitutional challenge to FOSTA. That’s certainly disappointing: this bad law will now stay on the books.
But the good news is that FOSTA stays on the books in a more limited manner: the court sharply narrowed FOSTA to address the arguments that its overly broad reach criminalized protected speech and caused a massive chilling effect on online speech. That’s a significant improvement. It means that sex workers, advocates for sex workers’ rights, and other online speakers are better protected from prosecution, or from the chilling effects that come with fear of prosecution. But the court’s opinion still leaves many questions unanswered and uncertainty for the online intermediaries upon whom sex workers rely.
FOSTA, the Allow Victims to Fight Online Sex Trafficking Act, contained multiple speech-restricting provisions. Most significantly, it:
- Created new federal criminal and civil liability for anyone who “owns, manages, or operates an interactive computer service” and speaks, or hosts third-party content to “promote or facilitate the prostitution of another person.”
- Expanded criminal and civil liability to treat any online speaker or platform that allegedly assists, supports, or facilitates sex trafficking as “participating in a venture” with individuals directly engaged in sex trafficking.
- Carved out 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 expressed by their users’ speech might be seen as promoting or facilitating prostitution, or as assisting, supporting, or facilitating sex trafficking.
Five plaintiffs filed a constitutional challenge to the law on the grounds that it silences protected speech by muzzling online speakers and forcing online intermediaries to censor their users. The lawsuit was supported by expert declarations and amicus briefs that showed how the law led numerous legally operated online sites to shut down, thwarting both harm reduction efforts and law enforcement, and forcing sex workers back on to the streets across the country.
The plaintiffs were Woodhull Freedom Foundation, Human Rights Watch, the Internet Archive, and two individuals, Eric Koszyk, a licensed massage therapist whose business was blocked when Craigslist shut down its Personal Services listings because of FOSTA, and Alex Andrews, an advocate for sex workers’ health and safety and the co-founder of RateThatRescue.org. EFF represented the plaintiffs along with lead counsel, Robert Corn-Revere (initially with Davis, Wright Tremaine LLP and later with the Foundation for Individual Rights & Expression); Walters Law Group; and Daphne Keller.
In an earlier ruling, the D.C. Circuit concluded that the Woodhull plaintiffs had standing to challenge FOSTA, noting that both Andrews (as the operator of an online discussion forum) and Koszyk (as an individual affected by Craigslist’s response to FOSTA) had raised legitimate concerns about the law’s sweep.
Now, the D.C. Circuit has rejected plaintiffs’ claims about FOSTA’s unconstitutionality. It held instead that the law did not cover a significant amount of protected speech, relying in large part on a Supreme Court opinion issued just a few weeks before.
With respect to FOSTA’s expanded definition of “participation in a venture,” the court ruled that “knowingly assisting, supporting, or facilitating” sex trafficking did not carry its plain everyday meaning, which would bring within the law’s sweep protected speech, such as advocacy for the decriminalization of sex work and the general distribution of health and safety information. Instead, the court said, FOSTA’s prohibition was limited to the criminal law concept of aiding and abetting.
Aiding and abetting means helping someone with the specific intent to further the commission of a crime. FOSTA thus only prohibits “aiding and abetting a venture that one knows to be engaged in sex trafficking while knowingly benefiting from that venture.” The court found that this definition did not include any speech protected by the First Amendment since speech in furtherance of an illegal act like that is not protected.
The court also found that the fault requirement in this part of FOSTA, despite initial disparities debated among federal courts, is now accepted as actual knowledge. That is, the law bars only knowing participation in a sex trafficking venture, not participation when one “should have known” they were participating in a sex trafficking venture.
The court adopted a similarly narrow interpretation of the new federal criminal law that made it illegal to operate an online service to “promote or facilitate the prostitution of another person.” The court held that “promoting” in the statute means only aiding and abetting prostitution, that is, “owning, managing, or operating an online platform with the intent to recruit, solicit, or find a place of business for a sex worker.” “Facilitation” goes beyond those specific acts to also include other forms of aiding and abetting. But problematically, the court doesn’t specify what these are.
The court also emphasized that the law did not prohibit “promoting or facilitating” prostitution, as such, but rather “the prostitution of another person,” which also carries a specialized meaning under criminal law. The examples the court gives imply that the “prostitution of another person” essentially means pimping—it is a crime to “recruit, solicit or find a place of business for a sex worker,” “running a ‘prostitution business,’” “actions that cause a specific person to ‘be prostituted’ or helps to orchestrate their prostitution,” “procuring a prostitute for a person,” “and other actions that aid and abet prostitution, like getting someone addicted to drugs, stealing their money or passports, or threatening them against leaving.”
The court explained that as written, “The language bespeaks something done to a particular person–aiding their prostitution by someone else or some force independent of the person being prostituted.” FOSTA does not “proscribe facilitating prostitution more generally.”
This limited reading of FOSTA offers significant protection to two categories of speakers.
First, FOSTA does not apply to sex workers themselves who use online services for their own sex work. This is not completely surprising, since FOSTA chiefly targeted online intermediaries, not the speakers themselves.
Second, and critically, FOSTA does not apply to speakers who generally advocate for decriminalization, discuss sex work or inform or educate others about it, or to intermediary platforms that provide forums for this speech. The court specified that FOSTA does not criminalize acts done
with the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution.
But beyond this, the opinion is unclear.
FOSTA’s application to online intermediaries and others who assist specific adult, consensual sex workers remains unsettled. The court only hints at limiting “the prostitution of another person” to trafficking, referring to Congress’s intention to “eradicate the use of online platforms when they contribute to sex work that is compelled by ‘force, fraud, and coercion.’” The court did not go so far as to limit “the prostitution of another person” to non-consensual or non-adult work (as trafficking is defined). It is not certain, for example, whether providing a Safe John list to a specific, known sex worker would be excluded as “giving advice to sex workers generally” or if that would be prohibited—the word “generally” seems potentially limiting. And the law appears to still apply, for example, to one who provides web-hosting services to a known sex work business—though a prosecutor would have to show they had the “intent” to promote or facilitate that sex work business’s illegal prostitution.
Recent Supreme Court cases support an even more limited reading that would apply FOSTA only to those intermediaries who aid and abet a specific, discreet criminal act, rather than supporting an unlawful enterprise more broadly. In US v. Hansen, the case heavily relied upon by the DC Circuit in Woodhull, the court emphasized that aiding and abetting requires “an intent to bring about a particular unlawful act” that is then actually carried out. This specific intent is required even if it is not explicitly written into the statute. And in Taamneh v. Twitter, the court held that it was not civil aiding and abetting for intermediaries to knowingly allow terrorist organizations to use their platforms at arms-length, the way other users do:
“Yet, we generally do not think that internet or cell service providers incur culpability merely for providing their services to the public writ large. Nor do we think that such providers would normally be described as aiding and abetting, for example, illegal drug deals brokered over cell phones—even if the provider’s conference-call or video-call features made the sale easier.”
According to the Supreme Court, online intermediaries do not aid and abet when they are generally aware of an overall unlawful enterprise; the intermediary must instead knowingly assist a “specific, wrongful act.” And they have to take some affirmative action with the intent of facilitating the commission of a specific offense—“encouraging, soliciting, or advising the commission of” an unlawful act.
Given all of this we hope that online forums for sex work do not remain closed, as have general use spaces, such as Craigslist’s Personal Services listings, which apparently carried too great of a risk of being used for sex work. But there remains some uncertainty and, unfortunately, the major platforms have shown no inclination to stick their necks out for sex workers.
Lastly, the court in Woodhull rejected plaintiffs’ argument that FOSTA’s retroactivity provision was an unconstitutional due process violation. The court said that that issue must be raised as a defense if one is prosecuted under the law for pre-FOSTA conduct.
While it is disappointing that FOSTA remains on the books, we appreciate that the court significantly limited its previously broad reach.
And this litigation also gave sex workers and sex work advocates a prominent forum in which to present evidence of why FOSTA, even if legally valid, remains an awful policy. The numerous amicus briefs filed throughout the case detailed FOSTA’s grave harms in forcing sex work back onto unsafe streets, impeding harm reduction and safety efforts, and thwarting law enforcement. These briefs, and the other conversations around this litigation, have helped to change the narrative around FOSTA, and have contributed to some overdue Congressional second-guessing.
We offer our heartful thanks to the brave plaintiffs who put their names on this case – Woodhull Freedom Foundation, Eric Koszyk, Alex Andrews, Human Rights Watch, and the Internet Archive, and to our dream team of co-counsel—Robert Corn-Revere, Lawrence Walters, Daphne Keller, Ronald London, Adam Sieff, Ceasar Kalinowski, and numerous other lawyers at Davis Wright Tremaine LLP and the Foundation for Individual Rights & Expression