FOSTA Is Unconstitutional, Argue Sexual Freedom Advocates and First Amendment Lawyers in New Motion
The Woodhull Freedom Foundation is suing (again) to get FOSTA ruled unconstitutional. FOSTA—the 2018 “human trafficking” law making it a federal crime to host digital content that promotes prostitution—violates the First and Fifth Amendments, says Woodhull’s motion for summary judgment, filed in federal court on August 31. It also takes aim at the law’s retroactive scope—FOSTA says you can be punished for violating it even before the law went into effect.
The suit comes after a federal district court dismissed an earlier filing against FOSTA, brought by Woodhull—a nonprofit dedicated “to affirm[ing] and protect[ing] sexual freedom as a fundamental human right”—and fellow plaintiffs The Internet Archive, Human Rights Watch, Eric Koszyk, and Alex Andrews. In January, a federal appeals court reversed the decision and sent the case back to the district court.
You can find their full motion for summary judgment here (and find previous court filings here). “Plaintiffs request a declaratory ruling that FOSTA is unconstitutional and a permanent injunction against its enforcement and application,” the motion states. They claim that “FOSTA is unconstitutionally vague and overbroad, is a content-based statute that cannot satisfy strict scrutiny, and lacks the necessary scienter requirements to be constitutional” (scienter refers to a person’s intent when doing something that the government claims is criminal). “And it explicitly is meant to have retroactive reach in both its criminal and civil applications.”
Meanwhile, the SAFE SEX Workers Study Act, introduced by Rep. Ro Khanna (D-Calif.) to pave the way for FOSTA’s dismantling, has gone nowhere since its introduction last December. Several civil lawsuits—two against Craigslist and one against Mailchimp—are invoking FOSTA in order to accuse these tech companies of being legally liable for “sex trafficking.”
Woodhull and the other plaintiffs are represented by Lawrence G. Walters of the Walters Law Group, Bob Corn-Revere of Davis Wright Tremaine, and the Electronic Frontier Foundation (EFF).
Doubts about democracy. A new Pew Research Center poll of Americans finds that “among the public overall, 68% say it is very important for the country that people are free to peacefully protest, down from 74% two years ago. In this case, the decline has come entirely among Republicans,” Pew notes.
The poll was conducted from July 27 through August 2 and consisted of 11,001 U.S. adults.
A majority of those surveyed (62 percent) agreed “that significant changes are needed in the fundamental design and structur
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