Asking Again: Why Does the Government Need FOSTA?

If I were to try to summarize the brief’s arguments and the many fine points the appellants make in poking what seem like substantial holes in the government’s arguments, doubtlessly I’d do it disservice, mangling its meaning and import with my layman’s flailing.

Instead, I’m going to select a few key bits from the brief in support of repeating an assertion of my own: Whatever the court ultimately decides concerning the Constitutionality of FOSTA, it’s clear the government doesn’t need this law to exist for the purpose of prosecuting sex trafficking, human trafficking, prostitution, pandering, or any of the other offenses ostensibly targeted by FOSTA, even if those cases involve websites and website operators.

As the Woodhull plaintiffs note in their response to it, the government’s recently filed opposition brief exhibits a “near-obsessive focus on Backpage.com”, mentioning the site 34 times. When I first read the government’s brief, this focus on Backpage struck me as a very odd thing, because as we all know, the operators of Backpage weren’t charged under FOSTA. For that matter, FOSTA wasn’t even law yet when the government raided and arrested the Backpage principals. Woodhull notes this fact in its brief, pointing out in one footnote that “(d)espite the government’s obsession with Backpage.com, it fails to mention that no charges were brought against its former owners under FOSTA.”

The other very strange thing about the government mentioning Backpage so many times in its opposition brief is that, you’ll recall, the prosecution of Backpage’s principals hasn’t gone particularly well for the government.

As Woodhull notes in another footnote, “(a)lthough the government’s brief is filled with allegations regarding Backpage.com as if they were established fact, it fails to mention that the website’s former owners were not charged with trafficking and that the court declared a mistrial after prosecutors repeatedly and improperly conflated trafficking, prostitution, and legal sex work, contrary to the judge’s instructions.”

So, why does the government insist on referencing Backpage so many times in arguing that FOSTA is Constitutional? It’s almost as though the DOJ views repeatedly writing “Backpage.com” as the litigation equivalent of saying “Candyman” five times while looking in the mirror – although, presumably, they’re not hoping for the Backpage case to manifest itself in a D.C. courtroom to murder their arguments.

Although, speaking of murdering their own argument, the government appears to concede the point that FOSTA is, at best, superfluous when it comes to the question of how best to tackle sex trafficking and human trafficking as matters of criminal prosecution. As the Woodhull plaintiffs observe, “the government undermines its claim of FOSTA’s ‘legitimate sweep’ when it insists that ‘[a]ll of the conduct prohibited by FOSTA was already unlawful before FOSTA’.”

Trying to make sense of the government’s position and arguments in this case gets my head swimming. The DOJ seems to simultaneously want to say that FOSTA is the least burdensome-to-speech means of achieving its interests, while citing narrower, less burdensome, more carefully crafted statutes that predate the establishment of FOSTA – and while citing the Backpage case as an example of the necessity of the law, despite the fact Backpage’s owners and principals were neither charged nor prosecuted under it.

Worse still, the government itself doesn’t seem to understand its own position on FOSTA. Observing that the government’s interpretation of the statute in the instant case contradicts its earlier assertions and interpretations, the Woodhull brief calls the government’s gaffe “striking for two reasons.”

“First, it confirms the mens rea requirements in FOSTA are so convoluted that even the Justice Department cannot keep them straight,” Woodhull states in the brief. “It seems to come up with a different interpretation each time it puts pen to paper. Certainly if the government has a hard time figuring out the law, those who must comply with it cannot be expected to understand, causing speakers to ‘steer far wider of the unlawful zone… than if the boundaries of the forbidden areas were clearly marked.’ Second, under FOSTA’s actual language, the so-called ‘bad actor’ classified ad websites the government cites as FOSTA’s raison d’être inexplicably benefit from a stricter scienter standard than everyone else. Thus, the government’s claim that mens rea requirements clarify FOSTA falls flat.”

I have no idea what the U.S. Court of Appeals for the District of Columbia Circuit will make of the government’s legal arguments, or the Woodhull plaintiffs’ response thereto. What I can say is that if FOSTA is still standing at the end of it all, we may be no closer to understanding how, when and where the government intends to apply and enforce the statute than we were the day it was signed into law – and we haven’t even touched on the law’s provisions for civil remedies, which is a whole other hornet’s nest.

While it’s probably too much to ask that new laws solve problems, we lowly constituents do have the right to expect that when Congress cooks up a new law, the statute it crafts doesn’t create a whole new set of problems, at least. Even if you accept the government’s own interpretation and defense of FOSTA, it’s hard to see how it clears even this lowest of bars.

“What in the Actual Hell” image by Brett Sayles from Pexels