On 28th June, the Woodhull Freedom Foundation, Human Rights Watch, The Internet Archive, and two individuals have filed a federal lawsuit challenging the constitutionality of FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act, 2017).
Woodhull’s President and CEO, Ricci Levy, said: “FOSTA chills sexual speech and harms sex workers. 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.”
Sex workers in the USA have been organising to raise awareness of the negative impact of FOSTA-SESTA since it was introduced, including organising a mass lobby and day of action on International Sex Workers’ Day on 2nd June.
Woodhull Freedom Foundation’s legal challenge is being made under the First and Fifth Amendments of the United States Constitution, which protect freedom of speech and due process. The lawsuit challenges FOSTA over its “overly broad” scope, and says “its restrictions on speech also are unconstitutionally vague. It imposes criminal penalties based entirely on speaking or publishing online with the “intent” to “promote” or “facilitate” the prohibited offenses but does not define those terms”.
The lawsuit also states: “The Act creates… ambiguity by increasing punishment for those who act “in reckless disregard of the fact that such conduct contributed to sex trafficking,” yet with no definition of what it means to “contribute to sex trafficking”. In their press release, the Woodhull Freedom Foundation state that they “absolutely support appropriately targeted and effective measures to end sex trafficking. FOSTA, however, erroneously conflates consensual sex work with trafficking, and will interfere with more productive attempts to protect vulnerable people from harm”.
Concerns about restrictions to freedom of speech were raised by the U.S. Department of Justice, among others, before the law was passed in April 2017, as the law creates both civil and criminal liability for website operators that host third-party content that ‘promotes or facilitates prostitution’. Woodhull Freedom Foundation said that “FOSTA represents the most broadly-based censorship of Internet speech since the Communications Decency Act of 1996, effectively driving large swaths of constitutionally-protected speech off the Internet”.