WASHINGTON — The Woodhull Freedom Foundation and other plaintiffs have filed initial papers with the U.S. Court of Appeals for the District of Columbia in their bid to block enforcement of FOSTA.
Woodhull and the other plaintiffs contend the law amending Section 230 of the Communications Decency Act, which previously provided companies immunity from most liability for publishing third-party content, violates the First and Fifth Amendments.
Since FOSTA was passed in the U.S. Senate and signed into law by President Trump numerous adult websites have been affected by the measure's intention to outlaw prostitution advertising. Some have even shut down.
Woodhull and others are appealing to a three-judge panel on the D.C. Circuit a decision by U.S. District Judge Richard Leon’s order that granted the U.S. government’s motion to dismiss their lawsuit over the enforcement of FOSTA.
Leon tossed the lawsuit because he ruled that the plaintiffs lacked standing in the case; he never reached the constitutional issues involving FOSTA.
On Friday, Woodhull and others offered a statement of issues to be raised, as well as other court papers that get the appeal off the ground.
The appellant’s issues over FOSTA consist of the following:
- “Whether the district court erred in holding appellants lack standing to challenge FOSTA’s constitutionality where on its face and in its reach and ambiguity it presents a credible threat of prosecution, and thus has chilled their speech (and that of numerous non-parties), led them to refrain from online speech they engaged in freely pre-enactment, and deprived them of previously available online platforms whose service providers prohibit formerly allowable posts under FOSTA.
- “Whether FOSTA violates the First Amendment by unconstitutionally weakening constitutional scienter requirements for online speech relating to prostitution and trafficking.
- “Whether FOSTA violates the First Amendment as an overbroad enactment that prohibits a substantial amount of protected expression by targeting anyone who owns, manages, or operates an interactive computer service with intent to ‘promote’ or ‘facilitate’ prostitution, or recklessly disregards that they ‘contribut[e] to sex trafficking,’ without defining or prescribing discernable limits for what qualifies as the promotion or facilitation of prostitution or trafficking.
- “Whether FOSTA enacts unconstitutionally vague restrictions on speaking or publishing online with ‘intent’ to ‘promote’ or ‘facilitate’ prostitution or trafficking offenses, with increased punishment for those acting “in reckless disregard” of the fact that their conduct ‘contributed to sex trafficking,’ without defining any of the operative quoted terms.
- “Whether FOSTA is an unconstitutionally content- and/or viewpoint-based statute that targets online publishers who ‘promote’ or ‘facilitate’ prostitution or act in ‘reckless disregard’ that their actions ‘contributed to sex trafficking,’ by restricting protected speech, including advocacy for decriminalization, provision of health and safety resources to sex workers, and other information that aids them.
- “Whether FOSTA’s selective elimination of publisher immunity for third-party posts relating to prostitution and sex trafficking, without defining what it means for online platforms to ‘promote’ or ‘facilitate’ prostitution or trafficking — or ‘prostitution’ or ‘contributing to sex trafficking’ for such purpose — facilitates a heckler’s veto and otherwise unconstitutionally impels service providers to censor protected speech and take down material that draws complaints.
- “Whether FOSTA violates the Ex Post Facto and Due Process Clauses of the Constitution by allowing states to prosecute pre-FOSTA conduct that they could not have prosecuted at the time it occurred and exposing defendants to increased penalties unavailable prior to FOSTA for conduct predating its enactment.”
The statement on the issues to be raised by Woodhull and other appellants is the first significant legal move in the appeal. The Justice Department’s motion to dispose claims is due by Monday, Nov. 26