Federal appeals court upholds controversial online sex-trafficking law

A federal appeals court has upheld a controversial sex trafficking law that opened websites to more liability for content that users post. 

A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled on Friday that the Fight Online Sex Trafficking Act (FOSTA) of 2017 is not overbroad nor unconstitutionally vague in violation of the First Amendment to the Constitution. 

The law passed overwhelmingly in both houses of Congress in 2018, including in a 97-2 vote in the Senate, after a months-long fight and notable controversy. It amended Section 230 of the Communications Decency Act of 1996 that widely prevents social media platforms and other websites from being held liable for content that users post online. 

FOSTA created an exception for sex trafficking to hold platforms responsible for enabling these crimes. 

Some major technology companies, including IBM and Oracle, backed the effort at the time, while the law’s passage was seen as a loss for Silicon Valley. 

The Woodhull Freedom Foundation, which works to protect sexual freedom, and other plaintiffs sued to have the law struck down, arguing that it has censored constitutionally protected speech. The plaintiffs argued it was overly broad and placed a restriction based on the content of the speech that the government tried to censor. 

Woodhull also argued that the law was partly unconstitutionally vague in violation of the Fifth Amendment for not being clear on what conduct is prohibited. 

A district court ruled against the plaintiffs, and they appealed to the appeals court. 

But the appeals court largely upheld the district court’s decision, finding that none of the plaintiffs’ arguments succeeded. 

Judge Patricia Millett said in her decision for the panel that certain terms could be read more broadly regarding what online platforms cannot do, but the law does not require a broad reading. A narrower reading of the law is necessary to avoid “grave constitutional concerns,” Millett said. 

The Justice Department had argued for a narrower reading of the law before the district court to avoid it potentially being more likely to be struck down. 

Despite the law’s intent to protect individuals from sex trafficking, it has been controversial among some sex workers, who argued that it makes their work more dangerous and does not adequately handle the issue it is trying to address. 

The law was crafted with a specific target in mind, a website called Backpage that was known for sex worker ads. Backpage was ultimately taken down using other laws, and workers could not turn to other common platforms like Craigslist because of a crackdown on sex-related content. 

Woodhull argued that some of the wording of the law holding the websites responsible for sex trafficking content was “sweeping” and could be applied to many contexts. The appeals court panel ruled that the text of the law was not sweeping in its reach when the terms were read in a statutory context instead of by themselves. 

“We thus hold that the provision does not have the expansive scope that Woodhull fears, but instead, proscribes only speech that falls within the traditional bounds of aiding-and-abetting liability, which is not a form of speech protected by the First Amendment,” Millett said on one statute about aiding and abetting sex trafficking that Woodhull tried to challenge. 

The judges further found that FOSTA does not criminalize promoting prostitution broadly but only punishes aiding and abetting the “prostitution of another person,” much narrower than Woodhull argued. They said the language of the law is commonly used in statues and not unclear in violation of the Fifth Amendment.