On Thursday, the Electronic Frontier Foundation filed a lawsuit against the federal government and Attorney General Jeff Sessions. Woodhull Freedom Foundation et al. v. United States is the first lawsuit to challenge SESTA-FOSTA, or the Allow States and Victims to Fight Online Sex Trafficking Act, which has faced widespread criticism since it was signed into law by President Trump in April.
In the complaint, EFF argues that SESTA-FOSTA violates the First and Fifth Amendments by preventing its plaintiffs from using online forums for fear of criminal charges. It argues that it is “the most broadly-based and comprehensive legislative censorship of Internet speech since Congress passed the anti-indecency provisions of the [Communications Decency Act] in 1996.” The Supreme Court found those provisions unconstitutional in 1997.
The EFF, a nonprofit founded in 1990, specializes in defending civil liberties online and in the realm of digital technology. They have been one of many organizations to mobilize against SESTA-FOSTA since it was first introduced to Congress in 2017, under the name H.R.1865. SESTA-FOSTA makes it a crime to operate or manage a website that “promotes or facilitates prostitution,” vastly expanding liability for sites that host any content on which sexuality may be discussed.
Because the law vaguely defines what speech can be interpreted as “supporting” prostitution, websites like Craigslist have already chosen to remove their personals section rather than face liability. Others such as Instagram have increased scrutiny of hashtags such as #yesastripper, while Reddit has outright banned subreddits including r/Sexworkers. Just this week, fundraising host Patreon suspended the accounts of numerous adult-themed creators. Any discussion of sex work, or even sex in general, could potentially make a third-party host – from Twitter to Google – liable for their users’ posts.
Although its stated purpose is the prevention of sexual abuse by means of cutting off access to communication tools used by traffickers, SESTA-FOSTA has been widely criticized for disregarding the needs of the communities it seeks to protect. Organizations that provide services to people in the sex trades have reported an increase in harm since Congress passed the bill in March. That harm is largely coming from traffickers, who accurately see sex workers as newly vulnerable without online resources such as Craigslist or Backpage.com.
The plaintiffs named in Woodhull Freedom Foundation et al. v. United States, are three organizations – Human Rights Watch, Woodhull Freedom Foundation and the Internet Archive – and two individuals: a licensed massage therapist named Eric Koszyk, and founder of sex worker resource Rate That Rescue Jesse Maley, aka Alex Andrews. The EFF argues in the lawsuit that these plaintiffs are all “engaged in constitutionally protected speech on the Internet” and that SESTA-FOSTA is a violation of both the First Amendment, which guarantees freedom of speech, and the Fifth Amendment, which guarantees due process.
David Greene, the Civil Liberties Director of EFF, tells Rolling Stone that the broad range of interests represented by these plaintiffs strengthens the case. “We hope this gives those following the lawsuit some sense of how pervasive the law’s harms have been, and how far Congress overshot its goal of fighting sex trafficking,” he says.
Many activists see this lawsuit as a game changer. “The arguments being made by this lawsuit – that it is nearly impossible for organizers to advocate for changes in criminal policy, for harm reduction workers to distribute information and resources, for sex workers to keep each other safe – reflect a cross-section of concerns from the movement,” says Lola Balcon, a community organizer with the sex worker rights movement, who advises the harm reduction program Gays and Lesbians Living In a Transgender Society. “This lawsuit is just one piece of the movement forward.”
Greene explains that, “the vast majority of sexual expression gets unqualified First Amendment protection,” invoking the 1997 Supreme Court case Reno v ACLU – the first major SCOTUS ruling on materials distributed online – which struck down the anti-indecency provisions of the Communications Decency Act.
The lawsuit asks for a preliminary injunction, which, if granted, would mean that SESTA-FOSTA cannot be used as grounds for a lawsuit or criminal charge until Woodhull Freedom Foundation et al. v. United States is decided.
“We hope the law is struck down as unconstitutional,” says Greene, and that in the future fight against online sex trafficking, Congress will, “try harder to write and pass a far more narrowly tailored law.”