DC Appeals Court Rules Anti-Sex Trafficking Law Is Constitutional

A 2018 anti-sex trafficking law that carved out liability protections for the tech industry doesn’t violate the First Amendment, the U.S. Court of Appeals for the D.C. Circuit ruled Friday in docket 1:18-cv-01552.

Congress passed the SESTA-FOSTA (the Stop Enabling Sex Traffickers-Allow States and Victims to Fight Online Sex Trafficking) package in 2018 (see 2210260073). SESTA-FOSTA established that immunity doesn’t apply to child sex trafficking claims if the conduct underlying the claim also violates the criminal child sex trafficking statute. The U.S. District Court for the District of Columbia previously upheld FOSTA in full, and the appeals court affirmed Friday.

The Electronic Frontier Foundation sued the federal government in 2018, claiming SESTA-FOSTA violates the First and Fifth amendments because it blocks people from using online platforms due to fear of criminal prosecution under the 2018 law. The plaintiffs are Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, Alex Andrews and Eric Koszyk. Woodhull is a human rights organization that advocates for sex workers. Andrews runs sex-worker advocacy groups, and Koszyk is a licensed massage therapist.

FOSTA’s “clarification” that Communication Decency Act Section 230 “withholds immunity for violations of federal sex trafficking laws comports with the First Amendment,” the court ruled. It agreed with the district court’s decision to dismiss the plaintiffs’ challenge to Section 230’s retroactive application, and said FOSTA isn’t “overbroad or unconstitutionally vague.” Judge Patricia Millett filed the opinion on behalf of Circuit Judges Justin Walker and Harry Edwards.

The court disagreed with Woodhull’s argument that “selective withdrawal of Section 230 immunity only for those who speak on disfavored subjects like the promotion of prostitution and sex trafficking violates” the First Amendment. FOSTA doesn’t criminalize the promotion of prostitution broadly, the court said: It only “punishes aiding or abetting” prostitution of another person, which is a much narrower distinction.

Nothing in the First Amendment required Congress to “confer Section 230 immunity on speech that violates federal criminal laws in the first place, and nothing in the First Amendment ossifies such immunity once granted against any later clarification,” the court said.

DOJ argued in the case that the plaintiffs don’t have a reasonable fear of prosecution because the speech in question doesn’t promote illegal sex activity. The plaintiffs wrongly claimed Congress was attempting to criminalize discussion of prostitution when passing SESTA-FOSTA, DOJ argued: The law can’t be read to suggest there would be enforcement against advocacy or other legal work. The plaintiffs didn't comment.