The first lawsuit challenging the Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865), otherwise known as SESTA/FOSTA, was filed in federal court last week, claiming that the legislation violates the First and Fifth Amendments, Melissa Gira Grant reports at The Appeal. As anticipated by opponents of the legislation, complainants including Human Rights Watch and the Woodhull Freedom Foundation say the law’s broad language is chilling the speech of groups offering health and safety resources to sex workers.
The broadness of the law led to a near-immediate chilling effect. Even before President Trump signed SESTA/FOSTA, some websites began removing sex workers’ content, along with any content they believed could be construed as a violation of the law. Some ad websites, like Cityvibe, went offline completely. Craigslist replaced its Personals section with a notice stating, “US Congress just passed HR 1865, ‘FOSTA,’ seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline.”
With these site closures and takedowns, groups and lobbyists who backed SESTA/FOSTA declared victory. At the same time, sex workers reported that as a result of the law, they lost access to “bad date” lists tracking abusive and violent clients, along with the ad sites that allowed them to find clients independent of third parties. All this is why sex workers’ rights groups opposed SESTA/FOSTA, along with some anti-trafficking groups and women’s and LGBTQ rights groups.
According to the complaint, plaintiffs whose work involves supporting the legalization of sex work and providing education and health and safety resources to sex workers have felt pressured into silence by the law, fearing these efforts “will be considered ‘promoting or facilitating’ prostitution, or that prosecutors or civil litigants will allege that they ‘recklessly disregard’ that their activities may ‘contribute to’ sex trafficking.”
David Greene, civil liberties director and senior staff attorney at the Electronic Frontier Foundation, told The Appeal that he believes the law was purposefully made ambiguous.
“You don’t triple up on words like facilitate, support, assist, promote—unless you want to make sure you are going to capture all situations. But you can see how it’s at best uncertain whether advocacy for decriminalization [is] facilitating prostitution, because the law typically defines facilitation as just to make something easier. Are you making prostitution easier when you are offering resources to sex workers on how to do so safely?”
Though it would seem that such a clear assault on harm reduction efforts would render H.R. 1865 controversial amongst Democrats and the so-called free speech advocates on the right, I’ll reiterate that only two senators—Democrat Ron Wyden, and Republican Rand Paul—voted against this astoundingly shitty piece of legislation.