By Meredith Behrens

As many as forty million people are estimated to be trapped in modern day slavery.[1] Rather than disappearing with its formal abolishment in the 19th century, slavery has taken hold of victims not only in the United States, but around the world through human trafficking.[2] Roughly five million of these victims are victims of sex trafficking,[3] which is described as a “booming” industry that turns a yearly profit of 99 billion dollars.[4] Victims of sex trafficking are forced to engage in commercial sex acts such as prostitution or pornography through force, fraud, or coercion.[5]

Victims in the United States do not come from a set and predictable background.[6] Rather, victims of sex trafficking come from a variety of “races, ethnicities, sexual orientations, gender identities,”[7] socio-economic backgrounds, and educational levels across all fifty states.[8] However, victims are commonly minors, with the average age of entry balancing between fourteen and sixteen-years-old.[9] An estimated 300,000 American minors risk entry to the sex trafficking industry every year.[10]

The Effects of FOSTA

The expansion of the internet has only made the sex trafficking of victims easier.[11] In fact, three of every four victims may be trafficked online.[12] In 2018, Congress signed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) to combat the prevalence of sex trafficking online.[13] The text of the bill states that websites “that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.”[14] FOSTA seeks to correct this through both the amendment of the Communications Decency Act and the amendment of 18 U.S.C. § 2421 to add § 2421A.[15]

The Communications Decency Act (“CDA”) protects interactive computer service providers from being held as the publisher or speaker of offensive material published on their sites.[16] Service providers that allowed prostitution of children on their sites could claim immunity under the CDA.[17] However, FOSTA amends the CDA by adding to § 230(e) that the section has “no effect on sex trafficking law,” so these websites that knowingly allow for sex trafficking to take place were no longer protected.[18] Without this protection, there is an increased likelihood that service providers will monitor their sites to prevent and remove content related to the sex trafficking of individuals.[19] Section 2421A is the “centerpiece” of FOSTA,[20] which mandates a fine or imprisonment for whomever “owns, manages, or operates an interactive computer service . . . or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person.”[21] FOSTA both increases criminal liability and limits protections for interactive computer services with regards to sex trafficking content.[22] With such a substantial change, it is unsurprising that constitutionality concerns quickly arose.[23]

Constitutionality Concerns in Woodhull Freedom Foundation

On June 28, 2018, Woodhill Freedom Foundation filed a complaint in the United States District Court for the District of Columbia.[24] In that complaint, the plaintiffs assert that FOSTA violates both the First and Fifth Amendments to the United States Constitution, as well as the Ex Post Facto Clause.[25] This constitutional violation comes, in part, because plaintiffs claim it is “overbroad, vague, impermissibly targets speech based on viewpoint and content, pares back immunity from certain state law claims, erodes the scienter requirement, and wrongly criminalizes conduct that was lawful at the time committed.”[26]

Without addressing the constitutionality of FOSTA, the District Court granted the Government’s Motion to Dismiss after determining the plaintiffs did not adequately allege standing.[27] Plaintiffs appealed the ruling to the District of Columbia Circuit.[28] The Appellate Court heard oral argument on September 20, 2019, at which time Judges Rogers, Griffith, and Katsas determined whether a plausible interpretation of the language of FOSTA allowed for the plaintiffs to have standing.[29] Appellee argued that the text of 18 U.S.C. § 2421A specifically requires intent and refers to specific acts of prostitution rather than the concept of prostitution as a whole.[30] While the court admitted that this was a reasonable interpretation of the text, it appeared unconvinced that Appellant had not raised at least a plausible interpretation of the statute as well.[31]

On January 24, 2020, the Appellate Court released its holding regarding Woodhull Freedom Found, concluding that at least two of the five plaintiffs, Alex Andrews and Eric Koszyk, have Article III standing to bring forward a pre-enforcement challenge to the statute.[32] Alex Andrews created Rate That Rescue, a website that provides reviews of resources available to sex workers.[33] Eric Koszyk is a licensed massage therapist whose advertisements were removed from Craigslist after the passing of FOSTA.[34] Koszyk has suffered monetary losses as a result.[35] The Appellate Court reversed the District Court’s holding and remanded for further proceedings.[36]

Moving Forward

The District Court will now have to determine the constitutionality of FOSTA. There are two proposed interpretations of the statute before the District Court.[37] The Government’s constitutional interpretation of FOSTA is narrow, only including the promotion and facilitation of specific criminal acts.[38] The plaintiffs interpret the text broadly, to include a wide range of speech that goes beyond engagement in a specific criminal act.[39] Under the doctrine of constitutional avoidance, courts must disregard unconstitutional interpretations if they find an additional interpretation that is both reasonable and constitutional.[40] The District Court has yet to rule.

If the court determines FOSTA is unconstitutional, it is unclear what the effect will be. A significant decline has taken place in discovered sex trafficking activity online since the time of FOSTA’s passing, however, FOSTA was signed into law five days after Backpage (the most well-known site that allowed for sex trafficking) was seized.[41] While FOSTA did result in sites such as Craigslist removing relevant ad sections,[42] the test will be whether sex trafficking activity online will spike once more if FOSTA is off the books.

[1] Slavery Today, International Justice Mission,

[2] Id.; What Is Modern Slavery? Anti-Slavery,

[3] Sex Trafficking, End Slavery Now,; Sex Trafficking, Polaris,

[4] Human Trafficking by the Numbers, Human Rights First (Jan. 7, 2017),

[5] What is Sex Trafficking? Shared Hope

[6] The Victims, Human Trafficking Hotline,

[7] Violence Prevention: Sex Trafficking, Centers for Disease Control and Prevention,

[8] The Victims, supra note 6.

[9] Demand: A Comparative Examination of Sex Tourism and Trafficking in Jamaica, Japan, the Netherlands, and the United States, Shared Hope International at 5, [hereinafter Demand].

[10] Erin Weaver, Human trafficking has wide-reaching social impact, Souderton Independent (Jan. 18, 2014),

[11] Demand, supra note 9 at 5.

[12] See Child Trafficking Statistics, Thorn,; see also Robbie Couch, 70 Percent of Child Sex Trafficking Victims Are Sold Online: Study, Huffington Post (July 25, 2014), (“In 2014, buying a child for sex online can be just as easy as selling your old couch or posting an updated resume”).

[13] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No, 115-164, 132 Stat. 1258 (2018).

[14] Id.

[15] Id.

[16] Communications Decency Act, 47 U.S.C. §230 (2018).

[17] Alina Selyukh, Section 230: A Key Legal Shield for Facebook, Google Is About to Change, NPR (Mar. 21, 2018, 5:11 AM),

[18] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No, 115-164, 132 Stat. 1253 (2018).

[19] See Justice Department Seizes Classified Ads Website, Fox2News (updated Apr. 7, 2018, 9:13 PM),

[20] Woodhull Freedom Found v. United States, 334 F. Supp. 3d 185, 190 (D.C. Cir. 2018).

[21] 18 U.S.C. § 2421A(a) (2018).

[22] Patrick J. Carome & Ari Holtzblatt, Congress Enacts Law Creating a Sex Trafficking Exception from the Immunity Provided by Section 230 of the Communications Decency Act, WilmerHale (Apr. 16, 2018),

[23] Woodhull, 334 F. Supp. 3d at 189.

[24] Woodhull, 334 F. Supp. 3d 185.

[25] Id. at 189.

[26] Id.

[27] Id. at 203.

[28] Id.

[29] Oral Argument, Woodhull Freedom Found v. United States (D.C. Cir. 2019) (No. 18-5298),$file/18-5298.mp3.

[30] Id. at 17:40.

[31] Id.

[32] Woodhull Freedom Found. v. United States, No. 18-5298, 2020 WL 398625 (D.C. Cir. Jan. 24, 2020).

[33] Id. at *8.

[34] Id. at *9

[35] Id.

[36] Id. at *18.

[37] Oral Argument, supra note 29.

[38] Id.

[39] Id.

[40]  Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Sup. Ct. Rev. 181, 186 (2009).

[41] Eric Goldman, The Complicated Story of FOSTA and Section 230, 17 First Amend. L. Rev. 279, 285 (2018).

[42] Justice Department Seizes Classified Ads Website, supra note 19.