Federal Court Tosses Constitutional Challenge Of FOSTA Brought By The Only Person The Feds Have Used FOSTA Against

from the badly-written,-randomly-enforced dept

Another constitutional challenge to FOSTA has failed, at least for the time being. The bill no one in law enforcement thought would actually help combat sex trafficking became law in early 2018. Since then, it has had zero effect on sex trafficking. And the impetus for its creation -- the prosecution of Backpage execs -- proceeded right along without the law in place.

FOSTA's constitutionality has been challenged before. Last summer, the DC Court of Appeals revived a challenge after the plaintiffs were shot down at the district level. The Appeals Court said the law was littered with broad language that could be construed to target legal actions and behavior. It particularly had a problem with the terms "promote" and "facilitate" when used in conjunction with the law's sex trafficking language.

Andrews has established an Article III injury-in-fact because she has alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Her alleged conduct is “arguably affected with a constitutional interest,” because Andrews’ intended future conduct involves speech. Andrews operates a website that allows sex workers to share information. Her conduct is “arguably proscribed” by FOSTA because it is a crime to own, manage, or operate an “interactive computer service[]” with the intent to “promote or facilitate the prostitution of another person,” 18 U.S.C. § 2421A(a). FOSTA does not define “promote” or “facilitate,” nor does it specify what constitutes “prostitution,” a term undefined by federal law. Nor are these terms limited by a string of adjacent verbs (such as advertises, distributes, or solicits) that would convey “a transactional connotation” that might narrow the statute’s reach.

Not narrow enough, said the Appeals Court. Unfortunately, a federal court in Texas has come to the opposite conclusion about the same terms. (via Eric Goldman)

Its decision says the terms "promote" and "facilitate" are narrow enough to limit collateral damage to free speech and other protected activity. This challenge was filed by Wilhan Martono -- the operator of CityXGuide, someone the DOJ finally used FOSTA against more than two years after it was signed into law.

The Texas court says the language is narrow, targeting only the facilitation of the prostituting of someone else. It does not target prostitution in general. That being said, sex workers who moved to CityXGuide after the shutdown of Backpage were nonetheless collateral damage, even if the law is supposedly in place to punish sex trafficking, not consensual sex work.

Here's the court's rationale for its Constitutional call:

In this case, "promotes" and "facilitates" are not two terms of many in a list. However, these two terms do not stand alone and without context. FOSTA specifically criminalizes owning, managing, or operating a computer service with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person.

Most importantly, FOSTA connects both promotion and facilitation to the prostitution of another person. FOSTA does not obviously criminalize speech promoting prostitution generally. Instead, it prohibits an individual from committing certain acts with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person. In this context the word "facilitates" is most clearly read as referring to conduct that aids or assists in the prostitution of another person. Thus, the use of the word "facilitates" in FOSTA does not appear substantially to restrict protected speech relative to the scope of the law's plainly legitimate application.

Then the court goes further, equating the hosting of ads for sex work with the act of pimping.

FOSTA explicitly prohibits individuals from performing certain acts with the intent to promote prostitution of another person. It does not prohibit promoting prostitution more generally. In this context, "promotes" can most reasonably be interpreted as "to pander" or "pimp" as the Government suggests.

Even the government didn't argue Martono was engaged in the act of pimping. There are no charges related to that. Instead, his prosecution rests on FOSTA and the "facilitate/promote" language that Martono (unsuccessfully) challenged.

On more logical footing, the court finds the terms "jurisdiction" and "prostitution" adequately defined. But it still says the broad terms that turn hosting into pimping don't threaten protected speech or other legal activities. And since Martono's indictment hinges on FOSTA, the indictment is also good and legal.

The Court holds here that FOSTA is neither unconstitutionally vague nor overbroad. Further, the Court determines that the indictment against Martono was sufficient. Because FOSTA is not unconstitutionally vague or overbroad and the indictment against Martono is sufficient, the Court denies Martono's motion to dismiss.

Martono is sure to appeal this. But he'll be doing it in a circuit that tends to sympathize with law enforcement and isn't exactly known as the bastion of free speech. If it's taken up by the Fifth Circuit, perhaps the Appeals Court will find the DC Appeals Court's reasoning persuasive. Until then, FOSTA is still technically Constitutional. And it will continue to never be used to round up actual sex traffickers.

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Filed Under: doj, fosta, section 230, sex trafficking, sex work, wilhan martono
Companies: cityxguide


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  • icon
    That One Guy (profile), 2 Feb 2021 @ 10:42am

    That would have been nice, but it wasn't to be

    Since then, it has had zero effect on sex trafficking.

    Oh if only... as TD has covered in the past it has in fact had an effect on sex trafficking, namely by making the victims of it and those that are engaged in in sex work of the consensual variety worse off, and making it harder for investigators to find and catch those engaging in it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Feb 2021 @ 12:19pm

      Re: That would have been nice, but it wasn't to be

      making it harder for investigators to find and catch those engaging in it.

      That was the entire point.

      By making it more difficult to "find" evidence and people engaged in criminal activities, others can't use hard numbers against you during election campaigns. You can also use that "lack" of evidence to claim you've "done something" to fix the problem without actually doing anything to that effect. Finally you can also sweep that pesky infidelity under the rug and keep it there, out of sight and out of mind.

      The fact it can be used as a tool for political leverage is it's entire reason for existence.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 2 Feb 2021 @ 11:05am

    90% of the problem

    Tends to be long, very long term.
    This is something thats happened along time. the only problem here is WHO do you call the pimp.
    As these ladies and gents(?) are more independent, and are only advertising themselves, as we all DO while looking for a job. Theirs seems to be more Temp work, then most.

    When you need work, what are you willing to do?
    And if you cared enough about this, then why are you not in congress and FIXING everything else.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Feb 2021 @ 12:33pm

      Re: 90% of the problem

      When you need work, what are you willing to do?
      And if you cared enough about this, then why are you not in congress and FIXING everything else.

      To be fair, it's not like you can just walk up to the US Capital building and file an application. (Geez, that's liable to put me on several lists now....)

      More to the point, why should someone else fix everything for you? The US in general has refused to fix it's problems for years / decades. Preferring to wait it out and hope something better comes along may as well be the National Anthem at this point. It's also the reason why the international community is (finally) moving away from US leadership of global affairs. If you're so opinionated on this subject, where is your campaign website?

      reply to this | link to this | view in chronology ]

  • icon
    Nathan F (profile), 2 Feb 2021 @ 1:23pm

    And this is exactly why i think SCOTUS should review a law directly after it gets signed instead of waiting around for the possibility of someone being harmed by it and it making its way through years of court battles and expenses to get to them. An ounce of prevention and all that.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2021 @ 10:23am

      Re:

      That would be a bottleneck and a Supreme Court is not scaleable by design as it has precedence over all other courts. One may call it potentially a feature instead of a bug if they must review it.

      I could see adding a direct option for them to immediately directly nominate it as a "hell no" should it be neccessary but that has other issues like who should represent the legislature and of course what it would take to get ammended.

      reply to this | link to this | view in chronology ]


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