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FOSTA Is Unconstitutional, Argue Sexual Freedom Advocates and First Amendment Lawyers in New Motion

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Trump signing FOSTA into law on April 11, 2018

The Woodhull Freedom Foundation is suing (again) to get FOSTA ruled unconstitutional. FOSTA—the 2018 “human trafficking” law making it a federal crime to host digital content that promotes prostitution—violates the First and Fifth Amendments, says Woodhull’s motion for summary judgment, filed in federal court on August 31. It also takes aim at the law’s retroactive scope—FOSTA says you can be punished for violating it even before the law went into effect.

The suit comes after a federal district court dismissed an earlier filing against FOSTA, brought by Woodhull—a nonprofit dedicated “to affirm[ing] and protect[ing] sexual freedom as a fundamental human right”—and fellow plaintiffs The Internet Archive, Human Rights Watch, Eric Koszyk, and Alex Andrews. In January, a federal appeals court reversed the decision and sent the case back to the district court.

You can find their full motion for summary judgment here (and find previous court filings here). “Plaintiffs request a declaratory ruling that FOSTA is unconstitutional and a permanent injunction against its enforcement and application,” the motion states. They claim that “FOSTA is unconstitutionally vague and overbroad, is a content-based statute that cannot satisfy strict scrutiny, and lacks the necessary scienter requirements to be constitutional” (scienter refers to a person’s intent when doing something that the government claims is criminal). “And it explicitly is meant to have retroactive reach in both its criminal and civil applications.”

Meanwhile, the SAFE SEX Workers Study Act, introduced by Rep. Ro Khanna (D-Calif.) to pave the way for FOSTA’s dismantling, has gone nowhere since its introduction last December. Several civil lawsuits—two against Craigslist and one against Mailchimp—are invoking FOSTA in order to accuse these tech companies of being legally liable for “sex trafficking.”

Woodhull and the other plaintiffs are represented by Lawrence G. Walters of the Walters Law Group, Bob Corn-Revere of Davis Wright Tremaine, and the Electronic Frontier Foundation (EFF).


Doubts about democracy. A new Pew Research Center poll of Americans finds that “among the public overall, 68% say it is very important for the country that people are free to peacefully protest, down from 74% two years ago. In this case, the decline has come entirely among Republicans,” Pew notes.

The poll was conducted from July 27 through August 2 and consisted of 11,001 U.S. adults.

A majority of those surveyed (62 percent) agreed “that significant changes are needed in the fundamental design and structure of American government to make it work for current times.” Pew points out that “while views among the public overall have changed little since 2018, Democrats and Republicans have moved further apart in their opinions. Currently, 79% of Democrats say significant changes in the structure of government are needed, compared with 41% of Republicans.


Washington state files consumer protection lawsuit against Juul. Taking a page from the anti-tobacco playbook, the attorney general of Washington state is accusing vaping company Juul of “designing and marketing its products to appeal to underage consumers and deceiving consumers about the addictiveness of its product.” Here’s the kind of laughable claims the state is making to back up this assertion: “JUUL’s advertising used sharp patterns, bright colors and young models.”


• “In 2013, my amendment to stop the NSA’s unconstitutional metadata surveillance program was narrowly defeated,” noted Rep. Justin Amash (L–Mich.) on Twitter. “Multiple Congresses, Obama, and Trump renewed the program until it finally lapsed this year. Today, the 9th Circuit ruled the program illegal.”

• Trump is ordering federal agencies to report to the White House Office of Management and Budget how they can move to redirect federal funds away from what Trump calls “lawless” cities: New York City, Portland, Seattle, and Washington, D.C.

• D.C. police fatally shot a young black man in the back as he was running away from them. Deon Kay had just turned 18, according to his family. Police say they were called to the area “to investigate a man with a gun” and “upon arrival, officers encountered individuals in and around a vehicle.” When two of the men, including Kay, saw police and tried to leave the scene, the cops pursued and shot at them, killing Kay.

• Mike Masnick of Techdirt checks in on some of the public comments to the Federal Communications Commission about Section 230; start here:

• Social unrest may not be helping President Donald Trump as much as his folks think it will:

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Elizabeth Nolan Brown

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

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