The Bright Side of the D.C. Court’s Recent FOSTA Ruling

I don’t believe FOSTA accomplishes much of anything in terms of fighting the coercive and exploitative conduct most people probably think of when they hear the term “sex trafficking” – and I think its mere existence has chilled speech, further marginalized sex workers and made our country less safe for both sex workers and their customers.

As I’ve written about before, I also believe the fact FOSTA was concocted largely in response to the alleged criminal behavior of Backpage.com and some of the company’s primaries, while the site was shuttered and those executives were indicted for crimes prior to FOSTA being signed into law, proves FOSTA was entirely unnecessary even as to the law’s purported primary purpose of holding online platforms engaged in sex trafficking accountable for their actions.

After all, if prosecutors needed FOSTA to prosecute the primaries associated with Backpage, wouldn’t they have waited until the bill had been made law and used it against those primaries? Clearly, the prosecutors in that case didn’t feel as constrained by the pre-FOSTA legal environment as elected officials repeatedly suggested they were, when explaining why FOSTA was needed.

Given all that, how can I possibly see any good news in the fact that a court has upheld the statute?

First, I’ll concede that it’s a relatively slim glimmer of good news – and one that certainly won’t be cause for celebration among any sex workers whose vocation falls under the rubric of illegal prostitution, or those who are deemed to “facilitate” or “promote” such prostitution.

It’s also not good news for anyone who believes – as I do – that volitional, self-directed sex work currently deemed illegal prostitution should be legalized and (sensibly) regulated to make it safer for both sex workers and their clients.

The good news, such as it is, is limited to this: To the extent that people are concerned that writing about sex work in a positive way, or advocating for its legalization, or expressing support for sex workers might – by itself – constitute a prosecutable offense under FOSTA, the court and the government’s own interpretations of the statute offered in the case appear to forestall that possibility.

In his opinion, Leon states that the “relevant promotion and facilitation that is encompassed by the statute is not that of the general concepts of sex work or prostitution, as plaintiffs contend.”

“FOSTA contains textual indications that make it quite clear that the Act targets the promotion and facilitation only of specific instances of prostitution: it is not a crime to operate an internet service with the intent to ‘promote… prostitution’ as a general matter, as plaintiffs would read it, but instead to promote (or facilitate) the ‘prostitution of another person’,” Leon writes (emphasis from original, citations omitted). “Moreover, in this statutory context, the verbs in question, ‘promote’ and ‘facilitate’, are not necessarily to be read as coterminous with their dictionary definitions.”

Throughout his decision, Leon reiterates that the scope of FOSTA is “far more limited” than the interpretation offered by the plaintiffs.

To me, this suggests that if I were to be indicted under FOSTA at some point for operating a website that advocated for the legalization of prostitution and/or provided practical tips on ways sex workers can ply their trade more safely, my attorneys would have a potent argument at their disposal for the charges to be dismissed. After all, all their client would have done is express the very sort of things that a federal judge has already said are not prosecutable as criminal conduct under FOSTA.

Reed Lee, Chair of the Free Speech Coalition’s Legal Committee, called Leon’s decision “a clear refutation of the hopes of FOSTA’s proponents that the general online promotion of prostitution would be criminalized by the legislation.”

“The final language of FOSTA made this outcome really quite clear in the case of the Mann Act amendments,” Lee added. “So, this decision is really no surprise. Even the government urged this narrow interpretation.”

On the civil litigation side of things, the impact of Leon’s decision is less clear – particularly where the question of general versus specific knowledge is concerned. Noting that under FOSTA there is “also an express private right of action for damages by ‘victims’ of prostitution,” Lee observed that courts haven’t been entirely consistent in their rulings.

“The general/specific matter is a bit less clear as a textual matter with regard to FOSTA’s sex trafficking amendments, and here litigation continues, with decidedly mixed results so far,” Lee said. “When a clear victim of sex trafficking (i.e. underage person or force, fraud, or coercion victim in connection with a commercial sex act) sues a vast internet platform asserting that it knowingly benefited financially from participation in a venture which it should have known involved sex trafficking, the plaintiff wants to say that generalized knowledge of some unlawful activity by uploading end-users was enough. Some but not all courts are determining, along with Judge Leon, that specific knowledge or negligence is required. That wheel is still very much in spin.”

There is a caveat here, of course: Just because Judge Leon has opined that FOSTA doesn’t proscribe “promotion” and “facilitation” of the sort I’ve described in my above hypothetical, this is no guarantee that another court in a different circuit would agree – or that prosecutors bringing cases in that other circuit would agree. Leon’s decision, however, does offer some good news on this front, as well.

“You are right to recognize that, ordinarily, one federal district court judge’s opinion on a matter of federal law binds only that judge and, if affirmed on direct appeal, only the other judges in the circuit,” Lee said. “But something more is going on here–not commonly recognized. A judge’s legal decision, unless reversed on appeal does bind the parties themselves. In civil litigation, this doesn’t affect much because the next case will almost certainly involve different parties. But this case involved the United States as a party — the necessary party to any criminal prosecution. So long as Judge Leon’s decision stands, it binds the United States and that is a much bigger deal than, say, a district court decision in Activist v. City.”

Lee said I was right about the “the precedential effect, so-called stare decisis,” but added that “here the res judicata effect precludes the parties from taking a contrary position in subsequent litigation.”

“And where one of those parties is the only party which can prosecute federal crimes, that’s really quite a big deal,” Lee observed. “Having benefited (by avoiding invalidation in this anticipatory challenge), the government is precluded from turning around and arguing in a future case that the statute means more. The (comparatively obscure) doctrine is known as ‘estoppel by judgment’ or, in the quaint (and misleading) traditional language of the common law, ‘estoppel by deed.’”

Lee said that while the effect of estoppel by judgment is “not widely appreciated” it is “very real.”

“If the government prosecuted an essayist in Alaska under the FOSTA Mann Act amendments, for generally advocating prostitution (what Woodhull claims to do), that prosecution is, so long as Judge Leon’s decision stands, subject to a motion to dismiss,” Lee said. “That is no small matter in criminal litigation.”

My understanding is that the Woodhull plaintiffs intend to appeal Leon’s decision, so it’s also quite possible his opinion will be overturned by the U.S. Court of Appeals for the D.C. circuit. But, even if Leon’s decision stands on appeal, at least the news won’t be all bad.

Of course, this bit of good news is cold comfort (or, more likely, no comfort at all) to sex workers. But at least in the ongoing efforts to legalize and decriminalize sex work, it looks like those of us who advocate for such changes won’t be prosecuted merely for being allies of sex workers.

Like I said, a slim glimmer of good news; but it’s certainly better than no good news at all.

Photo of E. Barrett Prettyman Federal Courthouse by AgnosticPreachersKid via Attribution-ShareAlike 3.0 Unported License. (Image has been resized and cropped.)