WASHINGTON — Woodhull Freedom Foundation has filed a reply brief with the United States Court of Appeals for the District of Columbia Circuit, the latest action in the organization's four-year legal battle to have FOSTA-SESTA declared unconstitutional.
Woodhull, which advocates nationally for sexual freedom, is joined in the appeal by Human Rights Watch, the Internet Archive, Alex Andrews and Eric Koszyk.
The reply brief precedes oral arguments in the case, which are scheduled for Jan. 11, 2023.
As XBIZ reported, in March the U.S. District Court for the District of Columbia rejected a legal challenge to FOSTA-SESTA presented by Woodhull and partners, ruling that the U.S. government can continue enforcing the controversial legislation. The following month, Woodhull and the other plaintiffs filed an appeal.
Woodhull is represented by Bob Corn-Revere of Davis Wright Tremaine; Lawrence G. Walters of Walters Law Group; Aaron Mackey, Corynne McSherry and David Greene of digital rights nonprofit Electronic Frontier Foundation; and Daphne Keller of the Stanford Cyber Law Center.
Walters told XBIZ in April that FOSTA’s Section 230 exemption “sets a dangerous precedent for government censorship of other types of disfavored speech.”
The brief outlines the appellants’ arguments that FOSTA is an “ex post facto” law and that the government abandoned its premise that FOSTA does not directly regulate speech, thus begging the question of whether FOSTA violates the First Amendment.
To support the First Amendment challenge, the lawyers argue that FOSTA is overbroad, that it is not susceptible to the government’s reconstruction, that the government’s reading of FOSTA is undermined by its own analysis of other statutes, that the law’s speech restrictions exceed its legitimate scope, that it is unconstitutionally vague, that it fails strict scrutiny and that its selective Section 230 carve-out violates the First Amendment.
‘Everyone in Adult Should Read This Brief’
Industry attorney and First Amendment expert Corey Silverstein, of Silverstein Legal, spoke to XBIZ today about the filing.
“The simple truth is that as much as the government wants to continue its victory parade over the enactment of FOSTA, the law itself has accomplished nothing except trample on free speech and even hurt its own law enforcement capabilities,” Silverstein noted. “Many of the online services that have shuttered as a result of this unconstitutional law provided much-needed safety for sex workers, and moreover these same online service providers regularly cooperated with law enforcement to assist in combating actual criminals.”
Instead, he added, all that FOSTA has accomplished has been “to further the government’s ability to restrict free speech and push many sex workers into dangerous situations because the platforms, that in many ways protected them, can no longer exist without the fear of prosecution.”
Silverstein commended the appellants’ counsel for doing “a terrific job articulating why FOSTA is unconstitutional and why the Court of Appeals must act accordingly.”
“In this reply brief, a clear picture is painted as to why the government’s position is both incorrect and the government is tripping over its own feet now that they have been called out for their obviously deficient arguments. In fact, appellants’ counsel does an excellent job bringing attention to the Appellate Court of the government’s abandonment of one its original arguments raised in the District Court.”
Silverstein recommended that “regardless of what sector of the adult industry you operate in, everyone should be taking the time to read this reply brief. I for one am grateful for the courage and will of the plaintiffs in this matter and the tireless work of their counsel. I am confident that the Court of Appeals will see the errors made by the District Court.”