Appeals Court Hears Arguments in FOSTA-SESTA Challenge

Appeals Court Hears Arguments in FOSTA-SESTA Challenge

WASHINGTON — A federal appeals panel of the United States Court of Appeals for the District of Columbia Circuit heard arguments yesterday in the Woodhull Freedom Foundation’s four-year legal battle to have FOSTA-SESTA declared unconstitutional.

Legal observers deemed the judges’ line of questioning as leaning toward the possibility of at least part of FOSTA-SESTA being struck down.

The District of Columbia Circuit Court of Appeals panel “expressed deep skepticism about the constitutionality of language in the anti-sex trafficking law that makes it a crime to operate a computer service with the intent to promote prostitution,” Politico reported.

According to the news site, two of the three judges, Patricia Millett and Harry Edwards, “seemed inclined” to rule that some aspects of FOSTA-SESTA violate the First Amendment by appearing to criminalize efforts to legalize prostitution.

Judges Millett and Edwards “repeatedly tangled with a Justice Department attorney defending the law, Joseph Busa.”

Judge Millett said that FOSTA-SESTA “appeared to ban operating or owning a computer service and advocating for legalizing prostitution at the same time,” Politico reported. “She said it was akin to banning library owners from pushing to decriminalize prostitution.”

As XBIZ reported, Woodhull, which advocates nationally for sexual freedom, is joined in the appeal by Human Rights Watch, the Internet Archive, Alex Andrews and Eric Koszyk.

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, “We were thankful for the opportunity to finally lay out our constitutional challenge to FOSTA before the D.C. Circuit. The arguments went much longer than the allotted time and the panel was very interested in the legal issues we raised.”

The appellants, Walters added, “look forward to the eventual ruling and hope for a successful outcome.”

Industry attorney Corey Silverstein told XBIZ that although it would be premature to assume victory, “from all accounts it appears that at least two of the three judges were obviously concerned that the plaintiffs are correct that the FOSTA does violate the First Amendment."

“Only time will tell but this is phenomenal news in this battle,” Silverstein noted.

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