The Center for Democracy & Technology (CDT) filed an amicus brief in Woodhull v. United States, a case challenging the constitutionality of Allowing States and Victims to Fight Online Sex Trafficking Act (FOSTA). FOSTA, signed into law in April 2018, made significant changes to federal criminal law and amended Section 230, the law that shields online intermediaries from liability for user-generated content. Since its passage, FOSTA has been used to prosecute only one case. At the same time, as CDT and other advocates warned when the law passed, it has made sex workers less safe and caused forums and websites to remove constitutionally protected educational information, art, advocacy, and other speech about sex, sex work, and sexuality.
The amicus brief argues that the D.C. Circuit should overturn a lower court’s ruling and declare FOSTA unconstitutional. The brief argues that FOSTA is unconstitutionally vague and overbroad and will continue to cause online intermediaries to remove constitutionally protected speech. The brief explains that, given the scale of content that appears on online platforms, many depend upon automated content moderation tools, which are inherently blunt.
As CDT research has shown, the significant limitations of these tools often lead to broad censorship of speech. FOSTA will encourage intermediaries to deploy these tools even more aggressively, resulting in over-removals of constitutional, societally beneficial speech.
In addition, the amicus brief argues that, even if the D.C. Circuit accepts the district court’s interpretation narrowing FOSTA to apply only to speech that aids and abets a specific instance of prostitution, FOSTA will still unconstitutionally chill speech and must be struck down.