Appeals Court Panel Seems Skeptical That FOSTA Doesn’t Violate the First Amendment

Will the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) finally be declared unconstitutional? After years of being panned by sex workers, civil libertarians, tech companies, U.S. lawmakers, and even law enforcement, opponents of the 2018 law face the best shot yet of seeing its demise.

That shot comes in the form of a court case before the U.S. Court of Appeals for the District of Columbia Circuit. Last week, the court heard arguments from those challenging FOSTA and from the government lawyers defending it.

Those challenging the law—Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, massage therapist Eric Koszyk, and sex worker rights activist Jesse Maley (also known as Alex Andrews)—have been fighting this battle in the courts since 2018. Their suit was initially dismissed by a district court for lack of standing, then revived by the D.C. Circuit in 2020, then again dismissed by the district court—which suggested FOSTA doesn’t target speech but conduct and therefore can’t violate the First Amendment. Now the case is back before the D.C. Circuit Court.

David Greene, senior staff attorney and civil liberties director at the Electronic Frontier Foundation and one of the lawyers helping challenge the law, says he can’t predict how the court will rule.

“But I was very encouraged that the court seemed to have read the papers closely, had a very good understanding of the arguments that were being made, were taking it very seriously and all the things you really wanna see … to show that they understand the importance and gravity of the issue,” Greene tells Reason.

Among other provisions, FOSTA created the new federal crime of owning, managing, or operating an “interactive computer service” with “the intent to promote or facilitate the prostitution of another person.”

In court last week, U.S. attorneys still clung to the argument that FOSTA merely targets illegal conduct, not protected speech.

The government has “essentially made a single argument, which is that FOSTA is essentially just an aiding and abetting statute, despite the language that it uses—it doesn’t use the terms and abetting—and as a result of that, it’s constitutional,” explains Greene. And last week in court, “they got a lot of pushback against that from at least two of the judges,” he says.

“In my mind, it’s not an aiding-and-abetting law. We know how to write ’em when we want to,” Harry Edwards, one of the th