Federal Online Sex Trafficking Law Survives First Amendment Look

The U.S. government can continue enforcing a law designed to curb online sales of unlawful acts with sex trafficking victims after a federal court in Washington found that it’s neither overly broad nor unduly vague.

The federal Allow States and Victims to Fight Online Sex Trafficking Act, known as FOSTA, doesn’t violate the First Amendment because it doesn’t discriminate against speech based on its content or viewpoint, the U.S. District Court for the District of Columbia said. And the law gives sufficient notice of the type of conduct it prohibits to survive a Fifth Amendment void-for-vagueness challenge, it said.

The court granted summary judgment for the government Tuesday.

FOSTA adds provisions to several laws to impose liability on websites that intend to “promote and facilitate prostitution” of sex trafficking victims, the court said. It clarifies that Section 230 of the Communications Decency Act, which gives interactive service providers immunity for the content of speech posted on their websites, doesn’t shield the sites from FOSTA liability, it said.

Woodhull Freedom Foundation, Human Rights Watch, Internet Archive, and two individuals who operate websites that might come within FOSTA sued to invalidate it. Their primary claim is that the law is overly broad because it widely affects First Amendment protected speech, the court said.

But the plaintiffs incorrectly interpreted the law as broadly targeting the online promotion or facilitation of sex work or prostitution, the court said. FOSTA’s text makes it “quite clear” that it targets promotion and facilitation only of specific instances of prostitution involving another person, it said.

Additionally, the normal dictionary definitions of “promotion” and “facilitation” don’t apply, the court said. For example, in a legal context, promote is understood to mean “to pander or pimp,” while facilitate is used to describe aiding-and-abetting type conduct, it said.

Taking these interpretive guidelines together, it’s clear that the law’s scope is much narrower than the one given to it by the plaintiffs, the court said. FOSTA is narrowly tailored to encompass only legitimate criminal activity, not a substantial portion of protected speech, and gives adequate notice of what conduct it prohibits, Judge Richard J. Leon said.

Davis Wright Tremaine LLP, Electronic Frontier Foundation, and Walters Law Group represent the plaintiffs. The U.S. Department of Justice represents the government.

The case is Woodhull Freedom Found. v. United States, D.D.C., No. 18-cv-1552, 3/29/22.