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The FOSTA Challenge

The D.C. Circuit Court of Appeals ruled on Friday, July 7th 2023, that the Fight Online Sex Trafficking Act (FOSTA) is constitutional, upholding key portions of the law that critics have said intrudes on First Amendment speech protections and harms sex workers.

FOSTA suspends Section 230 of the Communications Decency Act of 1996, a law that grants online platforms protection from liability for user-generated speech. After FOSTA passed, social media platforms were forced to censor sex-worker generated content in fear of being held criminally liable under the law. Since becoming law five years ago, FOSTA has been condemned for making sex work more dangerous and increasing online censorship. While lawmakers passed the law to combat sex trafficking, critics have alleged that the law has hindered law enforcement from using websites to catch actual traffickers, and that sex trafficking reports actually tripled the year after FOSTA was enacted.

“Today in necropolitical news, FOSTA is upheld. Our government, courts, and all its agencies don’t read or care about reliable science or listen to stakeholders directly harmed by their toxic policies,” - Angela Jones, a Sociologist and Sex Work Scholar, said on Twitter in response to the ruling.

Although the Court did not issue the constitutional ruling that was sought, it held that the law must be interpreted narrowly in order to avoid “grave constitutional questions”. By imposing the interpretive discipline Congress lacked, the Court ruled out many of the broader applications of FOSTA that caused Woodhull and its partners to challenge it.

Specifically, it held that FOSTA “Does not proscribe facilitating prostitution more generally, which could extend to speech arguing for the legalization of prostitution or that discusses, educates, or informs about prostitution.” It also clarified that the law “Does not reach the intent to engage in general advocacy about prostitution or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes web pages that discuss prostitution.”

Sex Workers and our allies in this fight, specifically Woodhull Freedom Foundation, the Electronic Frontier Foundation, The Stanford Law Center and the Foundation for Individual Rights and Expression, collectively took a deep breath and tried to find some small joy in the admission of the Court that the law needed to “interpreted narrowly” in order to meet its objectives, but we all know that the damage had been done many years ago and we will never be able to go back to a time where free speech around sex didn’t cost quite so much.

Freedom is - and always has been - tenuous for many of us. We might be able to see it in the distance but we don’t really get to experience it from the margins of our society. And it's not just sex workers: It’s women, people who have been arrested, people who live different identities under the LGBTQIA+ umbrella and people of color who are just treated differently than everyone else. The fall of the lawsuit challenging the constitutionality of FOSTA was just another barrier raised in all of our “freedom capacities''. When we don’t have freedom to express ourselves, we also lose the ability to celebrate our differences and to honor those who have paved the way for the small freedoms we still have.

Sex worker advocates have called for a total decriminalization of sex work in response to the ruling.

“Until sex work is decriminalized, laws like FOSTA will continue to dehumanize sex workers and push illegal activity, including child sex trafficking, into the shadows,” Reynolds said. “FOSTA doesn’t prevent human trafficking. It just moves it onto the dark web and into established criminal networks.” - Chelsea Julian Reynolds, Communications Professor at California State University, Fullerton

We want to thank Woodhull Freedom foundation, all of the attorneys from the Walters Group, the Electronic Frontier Foundation, The FIRE and the Stanford Constitutional Law Center for their relentless efforts in the fight to repeal FOSTA and we appreciate that you have stood in the gap to fight for and with us. The battle over this law has been time consuming, heartbreaking and stressful. Their assistance in raising awareness of our community and for listening to our stories and our experiences even when they have been difficult and complicated. We are very grateful and look forward to working with you to fight for our collective rights until we are all truly free.

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