Looks Like We’re Stuck with FOSTA – But at Least it’s a Narrow FOSTA

Now that the United States Court of Appeals for the District of Columbia has affirmed the district court’s rulings, I find solace in the same notion: As both the court and the government interpret FOSTA, the law can’t be used to target those who simply advocate on behalf of sex workers, or who argue for the legalization of sex work, to cite just a couple of potential concerns often cited when the law was first passed.

Throughout the decision issued last Friday, the court asserts that while some of the individual terms used in the language of FOSTA might be susceptible to an overly broad or vague interpretation, those interpretations aren’t defensible when read in the broader context of case law and the way those terms interact with each other.

For example, Woodhull argued that FOSTA’s amendment of Section 1591(e)(4) of the Trafficking Act to define “participation in a venture” is unconstitutionally overbroad under the First Amendment, but the court disagreed, finding that the phrase must be more narrowly construed than Woodhull contends.

“(R)eading Section 1591(e)(4)’s definition of ‘participation in a venture’ in light of its context and placement in the statutory scheme, the definition permissibly prohibits aiding and abetting a venture that one knows to be engaged in sex trafficking while knowingly benefiting from that venture,” the court wrote. “We thus hold that the provision does not have the expansive scope that Woodhull fears, but instead, proscribes only speech that falls within the traditional bounds of aiding-and-abetting liability, which is not a form of speech protected by the First Amendment.”

In another section of the ruling, the court holds that “Section 2421A(a)’s mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse.”

“Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution,” the court continued. “Instead, it reaches a person’s intent to aid or abet the prostitution of another person. That reading also makes sense in a statute that targets prostitution alongside sex trafficking, and seeks to eradicate the use of online platforms when they contribute to sex work that is compelled by ‘force, fraud, and coercion’.”

In a statement issued after the court’s ruling was handed down, the Woodhull Freedom Foundation itself noted the bit of silver lining in the court’s just-published cloud.

“Although the Court did not issue the constitutional ruling we sought, it held that the law must be interpreted narrowly in order to avoid ‘grave constitutional questions,’” Woodhull said. “By imposing the interpretive discipline Congress lacked, the Court ruled out many of the broader applications of FOSTA that caused us to challenge it.”

Woodhull added that the organization is “continuing to review the decision for its full implications and evaluating our options going forward.”

As I wrote when discussing the bright side of Judge Leon’s ruling last year, none of this “good news” about FOSTA makes it a good law, of course. But at least now when I write that it’s an entirely needless law, one which appears to mostly reiterate and underline the criminality of conduct that was already illegal, I can even add a line saying I think prostitution should be legalized without wondering whether I might be prosecuted under FOSTA just for having written that line.

Granted, that’s not much on which to hang our hats. But for now, it will have to do.

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