District Court Upholds Constitutionality of FOSTA; Sex Workers Vow to Appeal

Internet Safety Concept with Padlocked on Computer Keyboard

By Derek J. Demeri, Esq.

In a March 29, 2022 opinion, Judge Richard J. Leon sitting for the District Court for the District of Columbia granted summary judgment in Woodhull Freedom Foundation et al. v. the United States, No. 1552-18, in favor of the United States government and dismissed constitutional claims challenging the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”). Although Plaintiffs have vowed to appeal, this ruling is a major setback for sex worker rights and those who have been trafficked throughout this country.

What is FOSTA and What Does It Do for Sex Workers?

In 2018, FOSTA was enacted with overwhelming support in Congress. This law amended Section 230 of the Communications Act of 1934 so that websites could, among other things, become civilly or criminally liable for “promot[ing] or facilitat[ing] the prostitution of another person” or “act[ing] in reckless disregard of the fact that such conduct contributed to sex trafficking[].” Promoting or facilitating prostitution and prostitution itself are not defined anywhere in this legislation. At the state level, state laws criminalizing promoting prostitution overwhelmingly do not require force, fraud, or coercion as many presume and often include vital activities that sex workers use to keep safe, such as hired security, client referrals, or a booking agent.

Immediately after passage, FOSTA caused irreparable harm to sex workers. Countless websites shuttered large swaths of content that sex workers used for their safety in hopes of avoiding liability. This forced a number of sex workers to work in exposed and vulnerable environments made more dangerous by current criminalization laws. The law further caused widespread economic harm and instability, resulting in some sex workers becoming homeless.

FOSTA also made efforts to identify and root out actual instances of sex trafficking extremely difficult and made people in sex work more reliant on exploitive, violent third parties. Like many other misguided efforts to eradicate sex trafficking, FOSTA conflates consensual sex work with human trafficking and only makes the circumstances for those who trade sex much more dangerous—regardless of choice, circumstance, or coercion.

Judge Leon Upholds FOSTA’s Constitutionality

Plaintiffs in Woodhull challenged the constitutionality of this law by contending FOSTA, among other things: (1) chills constitutionally protected speech in violation of the First Amendment; and (2) is impermissibly vague in violation of the Fifth Amendment. The majority of Judge Leon’s opinion analyzed the Plaintiffs’ First Amendment challenge to the law and the proper interpretation of FOSTA’s text to “promote or facilitate the prostitution of another person.” See 18 U.S.C. § 241A(a).

In rejecting Plaintiff’s argument that (as the judge framed) “general concepts of sex work or prostitution” were not covered by FOSTA’s prohibition, Judge Leon focused on the fact that promoting prostitution “is an established term in the criminal law meaning ‘to pander or pimp’” and held the term, as used in FOSTA, meant to “aid, abet, or assist specific instances of prostitution.” The judge also concluded FOSTA did not prohibit any protected speech (despite real-world examples to the contrary) and noted harm reduction efforts by sex worker rights advocates “could not be illegal in any jurisdiction.”

In addressing the Plaintiffs’ vagueness arguments, Judge Leon noted the statutory terms should be “[r]ead within the criminal law context in which they appear.” Judge Leon went in as far as to say that Congress has no obligation to define “these . . . well-established statutory terms.” Since “FOSTA’s scope is limited to legitimately criminal activity,” the judge held Plaintiffs’ claims must fail.

What Judge Leon Got Wrong about the Criminalization of Prostitution

As is often the case when non-sex workers discuss the experiences of people in the sex trade, Judge Leon relied heavily on stereotypes and assumptions about how the law criminalizing prostitution actually works. Attempting to add clarity, the judge cited Black’s Law Dictionary to find promoting prostitution meant “to pander or pimp”—yet these terms are equally ambiguous and carry historical undertones of racism. While Judge Leon is not alone in presuming knowledge of what prostitution and promoting prostitution are in criminal law, there is greater diversity in these terms’ definitions as most would presume.

Take for example the meaning of prostitution. In New Jersey, prostitution is defined as “sexual activity with another person in exchange for something of economic value.” N.J.S.A. 2C:34-1(a)(1). In contrast, prostitution in Montana is more limited and defined as “sexual contact that is direct and not through clothing with another person for compensation.” MCA § 45-5-601(1).

With regard to promoting prostitution, in Pennsylvania, the crime is automatically levied against someone who is “supported in whole or substantial part by the proceeds of prostitution,” such as a significant other or elderly parent. 18 Pa. C.S. § 5902. Comparatively, Maine conflates prostitution with human trafficking altogether by simply stating one commits sex trafficking if they “knowingly promote prostitution.” Me. Rev. Stat. Ann. tit. 17-A § 853. Contrary to Judge Leon’s conclusion, promoting prostitution laws often criminalize harm reduction efforts for sex workers. By way of illustration, a union which advocates for the health and wellness of sex workers and is supported by dues-paying community members would violate Pennsylvania’s promoting prostitution statute, contrary to the aims of harm reduction.

Further, the precise meaning of prostitution has changed significantly in only the past few decades. Until New Jersey adopted its modern criminal code in 1978, prostitution under the criminal code (like many other states at the time) was defined as “indiscriminate sexual intercourse,” regardless of whether the sexual activity was for hire. See State v. Adams, 77 N.J. Super. 232 (L. Div. 1962). Meanwhile, Wisconsin, also like many other states, defined prostitution until a revision in 1978 as a crime that could only be committed by a woman. See State v. Mertes, 210 N.W.2d 741 (Wis. 1973).

Without conducting a fifty-state review, it is clear there are subtle—yet significant—-differences between these “well-established” statutory terms. While there are some universal activities that are certain to be covered by these criminal law terms, the exact contours are not uniform under respective state and federal laws. If that is the case, how can FOSTA put society (or in this context, website hosts) on notice of what is and is not prohibited criminal activity? Judge Leon circumvents this ambiguity altogether by defining promoting or facilitation prostitution as aiding and abetting liability without further exploring what that actually means or offering a definition of prostitution.

This misunderstanding of the statutory law is exactly why this author’s upcoming article, The Model Penal Code & Sex Work Criminalization set to be published by Vermont Law Review, is so important. Any constitutional or statutory analysis of sex work criminalization laws requires understanding their development and rooting out societal assumptions about what these provisions mean. In no other area of the law do we divorce terms from the statutory context in which they appear, and FOSTA should not be the first.

Given these precarious grounds by which Judge Leon rests his opinion in upholding the constitutionality of FOSTA, the Plaintiffs in Woodhull Freedom Foundation et al. v. the United States will have legitimate grievances to bring before the Court of Appeals for the District of Columbia Circuit. For the sake of eradicating the harm that FOSTA has caused, the Plaintiffs’ appeal could not come sooner.

Questions Sex Workers’ Rights

At Zeff Law Firm, we understand the dangers and realities that sex work criminalization laws have on those who trade sex. We are always staying up to date with the latest court opinions on sex worker rights and considering how these decisions could affect our clients. In this way, we are able to advise our clients accurately and efficiently under the current legal landscape. If you believe your civil rights have been violated, contact our offices today.

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