“So we support it [FOSTA’s] The mental state requirement falls short of the intent of engaging in general prostitution advocacy, or giving advice to sex workers in general to protect them from abuse, » wrote Justice Patricia Millett, joined by Justices Harry Edwards and Justin Walker. « Nor would it cover the intent to preserve web pages that discuss prostitution for historical purposes. Instead, it achieves one person’s intent to aid or abet another person’s prostitution. »
Millett conceded that the language could be seen as encompassing all types of conduct likely to promote or encourage prostitution. But he said the more limited reading was warranted in this case.
« Undoubtedly, the term ‘facilitate’ could be read more broadly, » the judge wrote. “But nothing inside [FOSTA] it forces us to read ‘ease’ in this way. Doubly so when a broader reading could raise serious constitutional concerns. »
Prostitution legalization advocates, operators of the Internet Archive website, Human Rights Watch, and a massage therapist who said he lost business when Craigslist pulled many ad categories after FOSTA’s 2018 approval have sued to block the law enforcement.
In arguments to the DC Circuit earlier this year, the Justice Department urged a narrow interpretation of the law to avoid a ruling that the statute is unconstitutional.
During the discussions, Millett and Edwards he seemed to regard the law as constitutionally flawedespecially his reference to behaviors that prostitute.
However, a 7-2 Supreme Court decision last month tightened a similar law against the promotion of illegal immigration may have prompted the DC Circuit judges to reevaluate their positions. by Millet 34 page opinion makes nine references to the high court ruling two weeks ago in United States versus Hansen.
A First Amendment attorney who has argued the case against FOSTA, Robert Corn-Revere, said Friday he was disappointed with the decision. However, he welcomed the appellate court’s strong signal that the law should not be used to discourage various advocacy and other activities not related to specific acts of prostitution.
« It’s not a bad thing that they said that applying a broad interpretation of the law would raise serious constitutional concerns and as a result they interpreted it rather narrowly, » said Corn-Revere, who recently became general counsel to the Foundation for Individual Rights and Expression. « I think the court cleaned up after Congress and made the statute more precise than the original drafters might have intended. »
Corn-Revere said the Supreme Court’s ruling in the immigration case « obviously influenced » the opinion of the DC Circuit. A separate High court decision limiting liability of social media companies in terrorism-related civil cases it is likely to further limit the use of FOSTA, he said.
A Justice Department spokesman declined to comment on Friday.
It’s unclear whether the DC Circuit ruling will provide any benefit to several founders and employees of the former classifieds website Backpage fighting sex trafficking allegations in Arizona. Their defense attorneys say the Justice Department took an inconsistent position, arguing that defendants could in fact be found guilty in the criminal charge based on evidence that fell short of the aiding and abetting threshold. The judge handling that case rejected those arguments last month.
The first trial in the Backpage case ended in an abrupt mistrial two years ago. A new trial will open August 8 in Phoenix.
Backpage, which grew out of the classified section of the Village Voice newspaper and eventually became far more profitable than the rest of the enterprise, closed in 2018 after the Justice Department accused the company of being a front for prostitution and obtained court orders seizing the firm’s assets.
Millett, the author of the court opinion on Friday, was nominated by President Barack Obama. Edwards is an appointee of President Jimmy Carter. Walker was nominated by President Donald Trump.