Several groups have banded together and filed a lawsuit challenging a controversial piece of legislation that was passed by the Trump administration last year. Nonprofit organizations Woodhull Freedom Foundation, Human Rights Watch, and the Internet Archive, have joined forces with the owner of a massage therapy studio, Eric Kosyzk, and Alex Andrews, who is the co-founder of RateThatRescue.com, a sex-worker led resource for finding and rating rescue organizations. They will be represented by the Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller, with counseling from the Electronic Frontier Foundation.
FOSTA, or the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” is the widest-sweeping legislative censorship of internet speech since the Communications Decency Act of 1996. It amends section 233 of the CDA and was introduced under the pretext of allowing states to sue websites for hosting third-party content that promoted or facilitated human trafficking, which certainly sounds like a noble goal. However, the law has been called unconstitutional, and is so poorly written that it may actually serve to make it harder to find and prosecute human traffickers, while making things more unsafe for consenting sex workers.
Woodhull’s President and CEO, Ricci Levy, says, “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.”
The Electronic Frontier Foundation, which is spearheading the suit against the United States, says that FOSTA is actually unconstitutional under two constitutional amendments. They claim that it “…violates the First Amendment in multiple respects: It punishes certain types of speech — including expressing certain viewpoints that advocate for decriminalization of sex work — and is not narrowly tailored. It broadly sweeps up protected speech within its prohibitions, many of which are not defined. Further, the terms in the law are so vague that it’s unclear what exactly Congress sought to prohibit, creating uncertainty for many Internet speakers as to whether what they say creates liability under the law.” The organizations also claim that FOSTA violates the Fifth Amendment, by using such vague and unspecified terms that it violates the amendment’s Due Process Clause. According to the EFF, it also violates the Constitution’s prohibitions on ex post facto laws by holding service providers liable for third-party content that occurred before the law was passed.
EFF opposed FOSTA vocally throughout the legislative process and holds that the law passed was actually the most “egregiously bad” version being discussed. The Justice Department filed their opposition on July 9th at the last minute, after being granted an extension. Woodhull and other plaintiffs must reply by Tuesday, July 17. District Judge Richard Leon is scheduled to hear the motion for preliminary injunction on Thursday, July 19, at 4pm, in his courtroom at U.S. District Court in the District of Columbia.
Greene, D. (2018, June 29). EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law. https://www.eff.org/deeplinks/2018/06/eff-sues-invalidate-fosta-unconstitutional-internet-censorship-law
Harmon, E. (2018, March 24). How Congress Censored the Internet. https://www.eff.org/deeplinks/2018/03/how-congress-censored-internet
Release, P. (2018, June 28). New Lawsuit Challenges FOSTA — The Federal Law Sparking Website Shutdowns. https://www.eff.org/press/releases/new-lawsuit-challenges-fosta-federal-law-sparking-website-shutdowns
Shechet, E. (2018, June 29). First Lawsuit Filed Against Awful ‘Sex Trafficking’ Law. https://theslot.jezebel.com/first-lawsuit-filed-against-awful-sex-trafficking-law-1827233474
Woodhull Freedom Foundation et al. v. United States. (2018, June 28). https://www.eff.org/cases/woodhull-freedom-foundation-et-al-v-united-states
Woodhull Freedom Foundation et al. v. United States complaint. (2018, June 28). https://www.eff.org/document/woodhull-freedom-foundation-et-al-v-united-states-complaint
Woodhull Freedom Foundation Files Lawsuit Challenging FOSTA. (n.d.). https://www.prnewswire.com/news-releases/woodhull-freedom-foundation-files-lawsuit-challenging-fosta-300675625.html
XBIZ. (2018, July 09). Justice Department Must Respond to FOSTA Suit by Tomorrow. https://www.xbiz.com/news/237057/justice-department-must-respond-to-fosta-suit-by-tomorrow