D.C. Circuit Should Hear First Amendment Challenge to FOSTA

Free speech is chilled when groups must be prosecuted before asserting their rights

February 21, 2019   •  By IFS Staff   •  
Default Article

Alexandria, VA – A friend-of-the-court brief filed last night by the Institute for Free Speech (IFS) argued that a federal judge erred in slamming the door to a First Amendment challenge to a 2018 law passed by Congress to fight sex trafficking.

“When faced with a credible threat of prosecution under a vague law, Americans should get their day in court,” said Institute for Free Speech Legal Director Allen Dickerson. “When speakers face lawsuits not only from government but from private parties, the risk that many will choose silence soars. It is vital that the courthouse doors remain open for cases like this.”

The Woodhull Freedom Foundation is challenging the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) because it “chills sexual speech and harms sex workers.” After a federal district court judge ruled the group didn’t have standing to challenge the law in court, the Foundation appealed the ruling. The IFS brief supports the Foundation’s appeal.

Courts have long recognized “the danger that citizens will not risk speaking in the face of ambiguous or merely possible governmental action,” the brief explains. As a result, they have historically relaxed the traditional rules of standing in order to allow Americans to challenge such laws in court.

“This is precisely the kind of case for which First Amendment standing doctrine was developed,” the Institute’s brief states. “It is a pre-enforcement challenge to a statute of startling scope and uncertain meaning, directly regulating a major frontier of First Amendment-protected activity. And Congress chose to decentralize its enforcement, permitting numerous parties – including private litigants and state attorneys general – to bring lawsuits against alleged violators.”

The district court relied heavily on the Justice Department’s claim that it would not prosecute the Woodhull Freedom Foundation under FOSTA. However, it cannot promise that states or private parties would do the same. The district court failed to address this aspect of the law.

The Institute for Free Speech works to defend the right to free political speech. If the lower court’s reasoning is upheld on appeal, other First Amendment challenges to political speech regulations may also be denied their day in court.

FOSTA creates new criminal and civil liability for online platforms and speakers that allegedly assist or facilitate prostitution or sex trafficking. The law also significantly weakens the protections afforded to online platforms against liability for the speech of their users. Plaintiffs in the case include the Woodhull Freedom Foundation, Human Rights Watch, and the Internet Archive.

The case, Woodhull Freedom Foundation v. United States, is before the United States Court of Appeals for the District of Columbia Circuit.

To read the Institute’s brief, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

IFS Staff