In a little-noticed action, the U.S. Court of Appeals for the D.C. Circuit on Jan. 24 overturned a lower court ruling dismissing a lawsuit challenging the constitutionality of a controversial federal law that holds websites criminally liable if found to “promote” or “facilitate” prostitution between consenting adults.
The lawsuit charges that the law passed by Congress called the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 known as FOSTA violates the First and Fifth Amendments of the U.S. Constitution by criminalizing protected speech and expression and holding someone liable for an action committed before the FOSTA law made it illegal.
LGBTQ rights organizations have joined civil liberties and sex worker rights groups in asserting that FOSTA has failed to bring about its intended purpose of curtailing human sex trafficking of adults and minors. Instead, critics say it has resulted, among other things, in internet sites refusing to accept ads from sex workers seeking consenting adults as customers, forcing sex workers to return to the streets where they are subjected to danger.
The lawsuit was filed in 2018 by the D.C.-based Woodhull Freedom Foundation, which advocates for decriminalization of sex work; the New York-based Human Rights Watch; and a massage therapist named Eric Koszyk, who says his massage business was wiped out when the FOSTA law prompted Craigslist to bar him from advertising on the site.
Others that joined the lawsuit as plaintiffs are the San Francisco-based Internet Archives, which serves as a digital “library” of websites that could be charged under FOSTA with promoting prostitution; and a sex worker advocate identified as Jesse Maley.
At the request of the U.S. Justice Department, which defended FOSTA against the lawsuit, U.S. District Court Judge Richard J. Leon dismissed the lawsuit on grounds that none of the plaintiffs had legal standing to file the suit. Leon upheld the Justice Department’s argument that the organizations and individuals filing the lawsuit were not in actual jeopardy of being prosecuted under FOSTA.
In his ruling dismissing the case, Leon did not make a determination of whether or not FOSTA is unconstitutional, only that the plaintiffs didn’t have legal standing to bring the issue before the court.
In its Jan. 24 decision to overturn Leon’s ruling, a three-judge panel of the D.C.-based U.S. Court of Appeals for the District of Columbia Circuit held that at least two of the plaintiffs did have standing to challenge FOSTA. The judges said the two plaintiffs showed that they could possibly be subjected to criminal prosecution or harmful civil litigation made possible by FOSTA because of their efforts advocating for sex workers.
The decision by Appeals Court Judges Judith W. Rogers, Thomas B. Griffith, and Gregory G. Katsas sends the case back to the District Court, where Judge Leon will be required to decide the case on the merits.
Robert Corn-Revere, the lead attorney representing the plaintiffs in the case, told the Blade that under this type of case, Judge Leon will issue a decision himself without a trial by a jury because the case is based on the interpretation of the FOSTA law’s constitutionality.
“It’s not like a case where you’re trying to decide who caused an accident, when the jury has to listen to testimony of the facts on both sides and decide factually what happened,” Corn-Revere said. “Where you have a case like this where the dispute is over what the law means, the judge should be able to issue a ruling based on whether or not the law is consistent with the Constitution.”
In a statement released at the time the lawsuit was filed in July 2018, Ricci Levy, the Woodhull Freedom Foundation’s president and CEO, said her organization strongly supports “appropriately targeted and effective measures to end sex trafficking.”
Added Levy, “FOSTA, however, erroneously conflates consensual sex work with trafficking, and will interfere with more productive attempts to protect vulnerable people from harm. FOSTA also chills online expression about sexual topics and encourages massive self-censorship by internet platforms.”