|The plaintiffs challenging the law—which include the Woodhull Freedom Foundation, the Internet Archive, and Human Rights Watch—argued that this portion illegally criminalizes speech. “The language that it uses includes not just things that are in themselves the commission of illegal acts of sex trafficking or prostitution,” David Greene, a lawyer on the case, told Reason earlier this year. The language of FOSTA “can be reasonably read to include protected [speech]—and not just protected speech, but speech that’s really highly important, like providing harm reduction, health and safety information to sex workers, to advocating on particular sex workers’ behalf, to advocating for decriminalization, and things like that.”
But the government contended, and a lower court agreed, that this section of FOSTA targets not speech but conduct. Federal prosecutors said it was a standard “aiding and abetting” law, aimed at punishing illegal activity.
The plaintiffs argue that “‘promote or facilitate’ has a variety of meanings, many of which include protected speech, such as general advocacy and the provision of safety and health information,” the appeals court noted in its Friday decision. But it took the government’s position that this was an incorrect interpretation, and thus FOSTA’s language is “not unconstitutionally overbroad under the First Amendment.”
FOSTA’s “mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse,” the court concluded. “Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution. Instead, it reaches a person’s intent to aid or abet the prostitution of another person.”
“Undoubtedly, the term ‘facilitate’ could be read more broadly,” it went on. “But nothing in Section 2421A(a) compels us to read ‘facilitate’ that way. Doubly so when a more expansive reading could raise grave constitutional concerns.”
Ultimately, “FOSTA does not criminalize promoting prostitution broadly. It only punishes aiding or abetting the ‘prostitution of another person,’ which has a much narrower reach,” the court said.
“Although the Court did not issue the constitutional ruling we sought, it held that the law must be interpreted narrowly,” commented Woodhull in a statement. “By imposing the interpretive discipline Congress lacked, the Court ruled out many of the broader applications of FOSTA that caused us to challenge it.”
“We are continuing to review the decision for its full implications and evaluating our options going forward,’ Woodhull added.
The group and its fellow plaintiffs had also argued that FOSTA’s amendment of the Trafficking Victims Protection Act of 2000 was overly broad. The law bans knowingly benefiting from “participation in a venture” engaged in sex trafficking. FOSTA defined “participation in a venture” as “knowingly assisting, supporting, or facilitating” sex trafficking.
“Woodhull argues that [this section] is overbroad because the operative verbs—assisting, supporting, or facilitating—are broad and potentially sweeping in their reach,” said the appeals court. But it decided this interpretation was also “incorrect.”
Reading the definition of participation in a venture “in light of its context and placement in the statutory scheme, the definition permissibly prohibits aiding and abetting a venture that one knows to be engaged in sex trafficking while knowingly benefiting from that venture,” the court concluded. “We thus hold that the provision does not have the expansive scope that Woodhull fears, but instead, proscribes only speech that falls within the traditional bounds of aiding-and-abetting liability, which is not a form of speech protected by the First Amendment.”