Sex Worker Groups Argue New Law Had Widespread Speech Impact Across Internet
A 2018 anti-sex-trafficking law violates the First Amendment, so a lawsuit against the statute (see 1806290044) should proceed, advocates argued Friday before the U.S. Court of Appeals for the D.C. Circuit. DOJ countered that plaintiffs don’t have a reasonable fear of prosecution because the speech doesn’t promote illegal sex activity.
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A federal judge dismissed the case last September, ruling plaintiffs lacked standing because, as DOJ argued, they didn’t prove a credible threat of prosecution. A three-judge panel for the U.S. Court of Appeals heard oral argument Friday, weighing the plaintiffs’ case for standing.
The panel noted DOJ’s heavy burden of proof in showing the implausibility of the plaintiffs’ argument. The plaintiffs are Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, Alex Andrews and Eric Koszyk. Attorney Robert Corn-Revere described Woodhull as a group that tries to make sex work safer, and said its free speech was stifled by the Stop Enabling Sex Traffickers-Allow States and Victims to Fight Online Sex Trafficking (SESTA-FOSTA) acts. Koszyk is a massage therapist who alleges he lost his advertising platform when Craigslist removed certain sections in reaction to the new law.
Plaintiffs wrongly claim Congress was attempting to criminalize discussion of prostitution, DOJ attorney Courtney Dixon argued. The statute, in fact, refers to specific acts of prostitution, she said. The law can’t be read to suggest there would be enforcement against advocacy or other legal work, she said: “The plaintiff fears prosecution under a statute that does not apply to their conduct, and they do not have a reasonable, credible fear of prosecution.”
Judge Thomas Griffith asked if it’s unreasonable to say the statute is broader than that and could potentially apply to such activities. The court is just looking for plausible reads of the statute, he said: “It doesn’t need to be the best at this stage.” Determining the best read can wait until merits are argued, he said, saying case law says tread lightly at this stage.
Providing resources to make sex workers safer doesn’t constitute promotion of unlawful prostitution, argued Dixon. But that’s DOJ’s interpretation, Judge Judith Rogers said. The question is whether that’s the only plausible interpretation, Rogers said, citing Griffith.
Judge Gregory Katsas raised the issue of Craigslist, which shuttered its personals section after the law’s passage. Katsas asked if it's a plausible showing of causation. “We pretty much do know what Craigslist did and why they did it, which is they constricted their website within a couple of days within the statute’s enactment,” he said. “They said they were doing it because the statute was enacted, and they said they wanted to resume the advertising platform if they were allowed to in the future.” Craigslist acknowledged a platform can be misused, Dixon said, and its desire to revive those services was offered only if the website could be certain it wouldn’t be misused for illegal purposes.
Griffith was skeptical, saying DOJ has a heavy burden to persuade the court that the plaintiff’s reading is implausible. Plaintiffs are speculating about redressability based on an independent actor that’s not before the court, Dixon said: “I don’t think they’ve met their burden.” The shuttering of Backpage (see 1804130032) confirms what Congress was attempting to do with the statute, and that’s not to criminalize any speech about prostitution on the internet, which is how the plaintiffs have characterized it, she said.
Corn-Revere cited a widespread speech impact across the internet. He said that includes policy changes from Google, Reddit and sex workers group DesireeAlliance.