WASHINGTON — The District of Columbia Circuit Court of Appeals on Friday upheld the district court’s judgment against the Woodhull Freedom Foundation in its four-year legal battle to have FOSTA-SESTA declared unconstitutional, and rejected the strict scrutiny challenge proposed by free speech advocates.
Woodhull, which advocates nationally for sexual freedom, was joined in the appeal by Human Rights Watch, the Internet Archive, Alex Andrews and Eric Koszyk.
As XBIZ reported, a federal appeals panel heard arguments in the case in January. Legal observers at the time deemed the judges’ line of questioning as leaning toward the possibility of at least part of FOSTA-SESTA being struck down.
Their new ruling, however, affirms that “neither Section 2421A of FOSTA nor FOSTA’s amendments to the Trafficking Act are overbroad or unconstitutionally vague,” that “FOSTA’s clarification that Section 230 withholds immunity for violations of federal sex trafficking laws comports with the First Amendment” and that the district court “correctly dismissed the challenge to Section 230(e)(5)’s retroactive application.”
Woodhull was 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, “While the decision is not what we hoped for, the DC Circuit Court significantly narrowed that scope of FOSTA by interpreting the law to not apply to protected speech and advocacy. We are reviewing the decision with our clients and evaluating their options in light of the ruling.”
Woodhull Releases Statement
Following the release of the decision, Woodhull released the following statement:
The United States Court of Appeals for the District of Columbia upheld FOSTA (Fight Online Sex Trafficking Act) in a decision released today.
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.
Specifically, it held that FOSTA “does not proscribe facilitating prostitution more generally, which could extend to speech arguing for the legalization of prostitution or that discusses, educates, or informs about prostitution.” It also clarified that the law “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.”
Woodhull added it continues to review the decision for its full implications and evaluating the options going forward.