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First Amendment Challenge to Anti-Sex Trafficking Law Can Go Forward

By Joseph Fawbush, Esq. on January 31, 2020

The Fight Online Sex Trafficking Act (FOSTA) was passed in 2018 to hold accountable websites that foster sex trafficking. Several high-profile “matching" sites that relied on user submissions, including the now-defunct backpage.com, were accused of promoting sex trafficking involving minors. While federal law typically protects website hosts from being held liable for content provided by third parties, FOSTA specifically made it a criminal act to host an “interactive computer service ... with the intent to promote or facilitate the prostitution of another person."

While the law did as intended – for example, shortly after its enactment Craigslist and Reddit removed sections of their websites that were used to advertise sex work – it also led to a First Amendment challenge from sex worker advocates, who allege that FOSTA's content-based restrictions on speech are overbroad, vague, and include an unconstitutional ex-post facto provision.

Do the Plaintiffs Have Standing?

A district court judge dismissed the case, holding that FOSTA applied to a narrow target – sex trafficking of minors – and not prostitution itself. As such, the plaintiffs, who are advocacy groups that seek to improve the safety and health of sex workers, are not credibly under threat of prosecution.

On appeal, a D.C. Circuit Court panel disagreed. It noted that much of the language of the statute is undefined. For example, there is nothing in the statute that limits prohibited behavior to transactional events. So, a plaintiff who runs a website that advocates for the rights of sex workers could credibly be under threat of prosecution, even if they weren't profiting from sex work directly.

In a separate concurring opinion, Judge Katsas agreed with the conclusion of the majority, but differed on parts of its analysis. Judge Katsas thought the panel was not required to adopt the plaintiffs' broad reading of FOSTA to find a potential injury to the plaintiffs. Judge Katsas found standing because one of the plaintiffs ran a website that offered information on safe payment options such as PayPal. This, Judge Katsas reasoned, could be found to violate the statute under a narrower interpretation of FOSTA.

There is no indication as yet whether the U.S. will appeal to the Supreme Court. While the plaintiffs have met their burden to prove standing, it is by no means clear they will succeed on the merits. Should the law be found unconstitutional, it is possible sites such as Craigslist would revive the sections of their websites that previously advertised sex work.

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