Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)

by guest blogger Alex F. Levy

18 U.S.C. §2421A(a) violates the First Amendment. While “[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection,” this provision prohibits far more than that. U.S. v. Williams, 553 U.S. 285, 286. Indeed, it criminalizes, inter alia, “operat[ing] an interactive computer service with the intent to promote or facilitate the prostitution of another person” even in jurisdictions in which prostitution is legal. 18 U.S.C. §2421A(a). (The fact that there is an affirmative defense available does not change the fact that, strictly speaking, the provision criminalizes protected speech.)

Unlike the SAVE Act, which prohibits the knowing advertisement of trafficked sexual services, this statute implicates constitutionally protected speech. See 18 U.S.C. §1591(a). In Backpage v. Lynch, plaintiffs were unable to assert standing to enjoin enforcement of the SAVE Act where they did not allege “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed the [the SAVE Act].” Backpage v. Lynch, 2016 WL 6208368 (D.D.C. Oct. 24, 2016) at *12. The court held that what Backpage did and intended to keep doing – namely, host “third party advertisements, including advertisements of legal adult sexual services” – did not fall under what the SAVE Act prohibits. Id at *11. These advertisements for legal adult sexual services constituted, in the court’s words, “conduct that is ‘arguably affected with a constitutional interest.’” §2421A(a) plainly reaches this constitutional interest.

18 U.S.C. §2421A(a) also differs from the Travel Act, which criminalizes, among other things, the use of interstate facilities with intent to “…promote…any unlawful activity.” 18 U.S.C. §1952(a)(3). (The Act defines “unlawful activity” to include prostitution offenses that are “in violation of the laws of the State in which they are committed or of the United States.” 18 U.S.C. §1952(b)(i)(1).) Unlike 18 U.S.C. §2421A(a), the Travel Act requires that the defendant “thereafter perform[] or attempt[] to perform” the crime at issue. 18 U.S.C. §1952(a). The Travel Act is thus not a restriction on speech alone.

A law that regulates speech based on its content must overcome strict scrutiny. See, e.g., Perry Educ. Ass’n v. Perry Educ. Assn, 460 U.S. 37, 46 (1983) (“a content-based prohibition must be narrowly drawn to effectuate a compelling state interest”). 18 U.S.C. §2421A(a) triggers strict scrutiny because it is a non-commercial, content-based speech regulation. Because it is not narrowly drawn to serve a compelling state interest, it is unconstitutional.

18 U.S.C. §2421A does not merely limit commercial speech. The words “promote or facilitate” do not, on their own, suggest a transaction. In U.S. v. Williams, the Supreme Court noted that “[w]hen taken in isolation,…‘promotes’ and ‘presents’ are susceptible of multiple and wide-ranging meanings.” U.S. v. Williams, 553 U.S. 285, 294. The Court relied on the statute’s “string of operative verbs – ‘advertises, promotes, presents, distributes, or solicits’” to contextualize the prohibition on “promot[ing]” certain material. Id. Here, of course, there is no such context: “promotes” and “facilitates” are isolated, causing the prohibition to reach beyond merely transactional (much less commercial) speech.

Regulations are deemed to be content-based by virtue of the fact that they “single[] out specific subject matter for differential treatment,” even if they do not favor a particular viewpoint. Reed v. Town of Gilbert, 135 S.Ct. 2218, 2221. Indeed, “[l]imiting speech based on its ‘topic’ or ‘subject’ favors those who do not want to disturb the status quo.” Id. at 2233. The topic of commercial sex is controversial and widely debated. A blanket prohibition on operating a website with the intent to promote prostitution will foreclose a range of discussions, including on the merits of decriminalization, harm reduction methods, safety measures, and others.

While eliminating sex trafficking is certainly a compelling government interest, this provision is not narrowly tailored to serve it. The law relies on the unsubstantiated idea that reducing prostitution will reduce trafficking. Indeed, the legislative report defends the regulation by proclaiming, without citation, that “[p]rostitution and sex trafficking are inextricably linked, and where prostitution is legalized or tolerated, there is a greater demand for human trafficking victims and nearly always an increase in the number of women and children trafficked into commercial sex slavery.” H. Rept. 115-572. But the claim that legalizing (or decriminalizing) prostitution leads to sex trafficking is widely controverted by scholars. (See sources discussed in A. F. Levy, The Virtues of Unvirtuous Spaces, 50 Wake Forest L.Rev. 403, 409-410 (2017)). Congress does not even inquire into the basic reliability of the premise that undergirds this sweeping content-based speech restriction.

The legislative record also notes that the law was created in part because “sex trafficking cases are often difficult to prosecute because the victims…may sometimes appear unsympathetic to juries.” H. Rept. 115-572. In other words, because sex trafficking victims make sex trafficking prosecutions challenging, Congress has leveraged a dubious connection (between prostitution and sex trafficking) to create a law that will allow prosecutors to avoid the hard cases, and prosecute fewer sex traffickers. This is not a narrowly tailored regulation.

18 U.S.C. §2421A would also not pass constitutional muster under the intermediate standard for commercial speech. See generally Central Hudson Gas v. Public Svc. Comm’n. Central Hudson Gas v. Public Svc. Comm’n, 447 U.S. 557 (1980). Importantly, intermediate scrutiny applies to advertising of so-called “vice activities” as well. See Coyote Publishing Inc. v. Miller, 598 F.3d 592 (2010).

In Greater New Orleans Broadcasting Association v. U.S., the Supreme Court struck down a portion of a law banning advertisement of casinos in states where casinos were legal. Greater New Orleans Broadcasting Association v. US, 527 U.S. 173 (1999). The government’s failing argument followed a logic not unlike that expressed by the authors of 18 U.S.C. §2421A. It unsuccessfully reasoned that the speech ban on casino advertising would directly advance its interest in “alleviating the social costs of casino gambling by limiting demand” because “‘promotional’ broadcast advertising concerning casino gambling increases demand for such gambling, which in turn increases the amount of casino gambling that produces…social costs.” Id. at 189.

Like the portion of the regulation struck down in Greater New Orleans, §2421A(a) prohibits “information, not commercial enticements of all kinds, and then only when conveyed over certain forms of media.” Id. at 191. This speech ban does not come close to being “narrow[ly] tailor[ed]…to the asserted interest.” Id. at 188 (internal citation omitted). As a result, it does not pass muster under the lower standard applied to commercial speech.

In Coyote Publishing v. Miller, the Ninth Circuit distinguished advertisements for sexual services from advertisements for other so-called “vice activities” – gambling, smoking, drinking, etc. – on grounds that prostitution ads by their nature contributed to the problem of commoditized sex, and were not simply adjacent to it. Coyote Publishing Inc. v. Miller, 598 F.3d 592 (2010). The vice that Nevada sought to curtail was not, of course, sex per se, but commercial sex – and ads, in the court’s view, did not just provide information about (or promote) this vice, but were, in some sense, the vice itself. “An advertisement that proposes the sale of a sexual act does not merely create a risk that a consumer of that message will travel in pursuit of such a transaction. Instead, an advertisement for sex itself creates the commodification harm that Nevada seeks to limit.” 598 F.3d 592, 607 (emphasis in original).

By declaring ads to be part of the vice, the court inadvertently made the case for subjecting them to strict scrutiny. If these ads have a persuasive effect independent of any underlying prostitution or other transaction, then they are not just ads: they are fully protected speech. As such, they are subject to strict scrutiny, and the state may only regulate them given a compelling interest and narrow tailoring.

Instead, the Ninth Circuit applied the lower form of scrutiny afforded to bans on vice activities – and added further demerits for its own dim view of sexual commerce. “The social condemnation of prostitution…may be relevant to the degree of scrutiny applicable to these advertising restrictions.” 598 F.3d 592, 601. But the state’s “interest in preventing the commodification of sex” was, according to the court, merely “substantial” (not compelling), and a “substantial” interest does not suffice for a content-based speech regulation. Notwithstanding its anomalous holding, the Ninth Circuit’s reasoning in Coyote would require that §2421A(a) meet strict scrutiny.

“Sexual expression which is indecent but not obscene is protected by the First Amendment.” Sable Comm. v. FCC, 492 U.S. 115, 126 (1989). Forbidding the promotion of prostitution on the Internet, in the words of Justice Frankfurter, would be “to burn the house to roast the pig.” Butler v. State of Mich. 352 U.S. 380, 383 (1957). §2421A(a) restricts Constitutionally protected speech, yet fails under both strict and intermediate scrutiny standards. It is unconstitutional and should not be passed into law.

More SESTA/FOSTA-Related Posts:

* SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
* Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
* Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
* What’s New With SESTA/FOSTA (January 17, 2018 edition)
* New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
* How SESTA Undermines Section 230’s Good Samaritan Provisions
* Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
* Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
* Another SESTA Linkwrap (Week of October 30)
* Recent SESTA Developments (A Linkwrap)
* Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
* An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
* The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
* Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
* My Senate Testimony on SESTA + SESTA Hearing Linkwrap
* Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
* Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
* Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
* How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
* Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity