A federal appeals court in D.C. upheld FOSTA, narrowing its scope, but as the Backpage case demonstrates, prosecutors can always twist such laws to censor and chill free speech.
On July 7, a three-judge panel of the U.S. District Court of Appeals for the D.C. Circuit shot down a constitutional challenge to one of the most dangerous laws passed by Congress in recent memory: the 2018 Fight Online Sex Trafficking Act (FOSTA). The law caused an unprecedented chilling of speech online, as many interpreted it as effectively outlawing anything that even resembled adult-themed advertising for escorts, dating, massage, etc.
In upholding FOSTA, however, the D.C. court narrowly interpreted the statute’s language, ruling that the law does not infringe on protected speech, such as “general advocacy about prostitution” or giving “advice to sex workers generally to protect them from abuse.”
In doing so, the court sided with the U.S. Department of Justice, finding that FOSTA’s use of the words “promote” and “facilitate” criminalizes only the “aiding and abetting” of a criminal act, i.e., prostitution. Specifically, the law threatens 10 years of imprisonment for anyone who “owns, manages, or operates an interactive computer service” — or conspires or attempts to do so — “with the intent to promote or facilitate the prostitution of another person.”
If five or more persons are “facilitated” into acts of prostitution, the penalty jumps to 25 years.
Woodhull’s attorneys argued that the word “facilitate” in FOSTA was “ill-defined” and could be interpreted with the ordinary meaning of “to make easier” — a much less rigorous standard than “aid and abet” and one that would rope in otherwise First Amendment-protected speech.
During an oral argument before the D.C. court in January, two of the panel’s judges seemed critical of the government’s contention that FOSTA was an “aid and abet” law.
But a June 23rd U.S. Supreme Court decision in U.S. v. Hansen concerning the constitutionality of a federal immigration statute may have tipped the balance.
Writing for the majority in Hansen, Justice Amy Coney Barrett repeatedly declared that “facilitation” and “aid and abet” were synonymous.
“Facilitating — also called aiding and abetting — is the provision of assistance to a wrongdoer with the intent to further an offense’s commission,” she wrote.
Barrett noted that “liability for aiding and abetting requires that a wrongful act be carried out,” and facilitation requires “an intent to bring about a particular unlawful act.”
The D.C. court cited this language in its FOSTA decision:
As a preliminary matter, the Supreme Court explained in Hansen that the word ‘facilitate’ is a synonym for aiding and abetting when that word is used in the context of criminal statutes . . . The Court further observed that facilitation is a ‘longstanding criminal [theory] targeting those who support the crimes of a principal wrongdoer.’ So it seems clear that, in this statute, ‘facilitating prostitution’ is most naturally read to mean aiding and abetting prostitution.
The D.C. court agreed that in the wake of FOSTA “several online platforms removed content and deleted entire sections of their websites,” observing that Craigslist took down its personals section because of the law’s passage. But the appellate court seemed to suggest that this widespread self-censorship was an overreaction.
The appeals court found that FOSTA “does not have the expansive scope that Woodhull fears,” Instead, FOSTA “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 a statement released after the D.C. court’s ruling, Woodhull made the best of its loss,
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.’ By imposing the interpretive discipline Congress lacked, the Court ruled out many of the broader applications of FOSTA that caused us to challenge it.
Sex-worker rights activists that Front Page Confidential spoke with recently found little reassurance in the ruling. They believe that since FOSTA was upheld, the chilling of protected speech is likely to continue.
Why? Because of what’s happened to Backpage.
Hammer Meet Nail
Juliana Piccillo is a co-founder of the Tucson chapter of the Sex Workers Organizing Project (SWOP), one of several sex-worker rights organizations that collectively filed an amicus brief supporting Woodhull.
In a discussion with FPC, she expressed disappointment about the ruling:
“What we see with law enforcement is that they can use these laws to harass, to arrest, to seize assets, and to shut down whatever activity they want to shut down. They may not prevail in a court of law, but they can certainly ruin people’s lives, ruin people’s businesses, et cetera.”
That is exactly what has happened to storied newspapermen Michael Lacey and Jim Larkin, former owners of the Craigslist-like classified listings site Backpage.com. For going on six years, they have endured a vindictive prosecution, involving the destruction of evidence, the seizure of nearly all of their assets, a 2021 mistrial triggered by egregious prosecutorial misconduct, and the seizure of more than $10 million in lawyers’ trust accounts, forcing several lawyers to abandon the case — at taxpayer’s expense, as three of Lacey and Larkin’s four co-defendants now have court-appointed attorneys.
Congress ostensibly passed FOSTA to provide the government with the tools necessary to prosecute Backpage, but this was a colossal lie. Instead, before FOSTA became law, Lacey, Larkin, and the others were indicted on 100 counts related to the facilitation of misdemeanor state prostitution offenses in violation of the U.S. Travel Act.
On April 6, 2018, the government seized Backpage, removing it from the internet.
The FOSTA challenge and the Backpage prosecution are linked. During the January oral argument before the D.C. appeals court, the government argued that FOSTA and the Travel Act were basically identical. The government attorney arguing the case maintained that — get this — the words “promote or facilitate” in the Travel Act and in FOSTA are equivalent to “aiding and abetting,” and therefore, constitutionally copacetic.
Never lacking in gall, the DOJ did this while prosecutors in the Backpage case argued — and continue to argue — that the word “facilitate” in the Travel Act has the broader definition of “to make easier,” instead of the much narrower “aid and abet.”
That stance, which is currently being litigated in pre-trial motions, is, of course, diametrically opposed to the position the government took at the D.C. appeals court in Woodhull.
No wonder those who advocate for sex worker rights don’t trust the federal government to adhere to the D.C. court’s ruling. The government can literally say the words “promote” and “facilitate” mean one thing in D.C. and another in Arizona.
Which is among many reasons Cris Sardina, director of the non-profit advocacy group Desiree Alliance will not be reconvening the organization’s biannual conference of sex workers and allies, which she put a halt to in 2018 after FOSTA’s passage.
The event drew upwards of 500 attendees, including “immigrants, trans people, drag queens — everyone who’s being criminalized right now,” she said.
“What confuses me is, how would an online platform know if the person posting the third-party content is a legal sex worker or [an illegal] sex worker?” — Bella Robinson, COYOTE-RI
“Do I want to put those people at risk as well as my organization?” she asked. “Let’s play “Fuck FOSTA’? Yeah, I’ll take 25 years to life, Alex, for 100.”
She argued that FOSTA, as upheld, means whatever the government wants it to mean. Desiree Alliance was quoted in the amicus brief.
The amicus was driven and organized by the Rhode Island chapter of the pro-decriminalization group Call Off Your Tired Old Ethics (COYOTE), which does outreach to sex workers and funds crucial studies on sex work. The backbone of the amicus is a study done by the organization on the harm done by FOSTA.
Bella Robinson, the group’s executive director, told FPC that “at least providing health and safety info and advocacy is protected,” but she worried that the D.C. court’s decision did not explore the difference between legal and illegal forms of sex work.
Granted, “aid and abet” would only apply to an illegal act, but in the Backpage case, the 50 ads in the indictment are not connected to specific crimes.
Robinson observed that in the 2015 Seventh Circuit Appeals Court decision, in Backpage v. Dart — one of Backpage’s many legal victories prior to its takedown — “the judge said he knew there to be legal adult entertainers,” such as escorts.
Similarly, during the abortive 2021 Backpage trial, one of the prosecution’s chief witnesses, an investigator with the California Attorney General’s Office who investigated Backpage, admitted that escorts are legal and that the ads he reviewed were lawful on their face.
“What confuses me is, how would an online platform know if the person posting the third-party content is a legal sex worker or [an illegal] sex worker?” Robinson asked.
Indeed, even the Cali AG investigator admitted he would practically have to be in the room with an escort and her client to determine if an illegal transaction went down.
Backpage forbade language indicating sex-for-money, cooperated with law enforcement, reported suspect ads, and answered subpoenas within 24 hours. And up until 2018, the courts consistently told Backpage that it was protected by the First Amendment.
And still, it’s on the hook for “facilitating” prostitution, according to the government?
So, FOSTA’s Big Chill on speech will likely continue unabated, even if Lacey and Larkin are found not guilty at their second trial.
The process has been the punishment in the Backpage case. No one in their right mind would want to experience the legal meat grinder Lacey and Larkin have been put through for more than five years.
Editor’s note: The original version of this article stated that Desiree Alliance joined in the amicus. This was incorrect. Desiree Alliance was quoted in the amicus, but did not join in it. All apologies.
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