Activists claimed the Fight Online Sex Trafficking Act violated the First Amendment.
The Circuit Court said it would interpret the threat of criminal punishment for the use of computer services in a manner “facilitating” or “assisting” prostitution to apply as longer-standing statutes traditionally do, to people “aiding and abetting” such crimes.
“We therefore hold that [FOSTA’s] mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse,” Judge Patricia Millett wrote, joined by Judges Harry Edwards and Justin Walker. “Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution. Instead, it reaches a person’s intent to aid or abet the prostitution of another person.
“Undoubtedly, the term ‘facilitate’ could be read more broadly,” the judge wrote. “But nothing in [FOSTA] compels us to read ‘facilitate’ that way. Doubly so when a more expansive reading could raise grave constitutional concerns.”
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