FOSTA – Woodhull’s Fight against a Miserable Failure
July 28, 2021
In early April 2017, Representative Ann Wagner (R-MO) introduced the Allow States and Victims to Fight Online Sex Trafficking Act. Four months later, Senator Rob Portman (R-OH) introduced the Stop Enabling Sex Traffickers Act. And in 2018, as part of what Melissa Gira Grant called “a direct response to a network of anti-sex work groups, along with high-powered lawyers and celebrities,” the bills became law.
It would be reasonable for someone who didn’t know better to assume that FOSTA-SESTA focuses on sex trafficking; the legislative package, after all, refers to trafficking in its very name. But FOSTA-SESTA erroneously conflates consensual sex work with sex trafficking, and in so doing, it harms sex workers and neglects the trafficking survivors it purports to serve. One of FOSTA-SESTA’s notable provisions is its creation of new criminal and civil liability for website operators who host third-party content that “promotes or facilitates prostitution of another person.” The conflation of sex work (“prostitution”) with sex trafficking implies that perhaps the authors and proponents of FOSTA-SESTA cannot conceive of the existence of consensual sex work. And by invoking the word “prostitution” without further specifying whether such “prostitution” is unconsensual (i.e., a form of trafficking) makes sex workers subject to FOSTA-SESTA.
Indeed, in the first in-depth legal analysis of FOSTA-SESTA and its impact, Kendra Albert, Elizabeth Brundige, and Lorelei Lee concluded that “it is clear that even the threat of an expansive reading of [FOSTA-SESTA] has had a chilling effect on free speech, has created dangerous working conditions for sex-workers, and has made it more difficult for police to find trafficked individuals.” In sum, FOSTA-SESTA ignores the issue it ostensibly targets—sex trafficking—while violating our constitutional rights and endangering the lives and livelihoods of sex workers.
Remarking upon FOSTA-SESTA’s impact, Grant notes that if it “was intended to protect people by making it easier to prosecute traffickers, it was a miserable failure.” On the other hand, if it were meant to lead websites to refuse sex workers a platform out of fear of legal risk, the legislation was tremendously successful.
We at Woodhull Freedom Foundation turned our outrage at FOSTA-SESTA into action when we filed a federal lawsuit against the U.S. District Court for the District of Columbia to challenge FOSTA’s constitutionality. Woodhull v. The United States demonstrates our ardent support of freedom of speech online and of the right to engage in consensual sexual activity, including sex work, and we oppose all forms of human coercion.
