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Sex Worker Rights Organizations Challenge Constitutionality of Federal Law That Criminalizes Free Speech

Washington, DC (September 15, 2022) — Decriminalize Sex Work (DSW), joined by eleven other organizations working to ensure the health, safety, wellbeing, and human rights of sex workers and survivors of trafficking, filed a new Amicus brief supporting the appellants in a federal case challenging the criminalization of protected speech. The Stop Enabling Sex Traffickers and Fight Online Sex Trafficking Acts (SESTA/‍FOSTA), which became law in 2018, damage the longstanding “safe harbor” rule provided by Section 230 of the Communications Decency Act, which protects freedom of speech on the internet. Individuals depend on this freedom to work, socialize, and exchange ideas online.

Woodhull Freedom Foundation et al. v. United States argues that SESTA/FOSTA is an unconstitutional violation of the First and Fifth Amendments. The case, filed in 2018, has again reached the U.S. Court of Appeals for the District of Columbia. DSW’s Amicus brief details the historical and political contexts that have bred misguided anti-trafficking policies and laws built on the conflation of sex work and trafficking. The law’s failure to differentiate between the two has injured sex workers and survivors. “Both qualitative and quantitative evidence show that SESTA/FOSTA has caused immense harm to already marginalized and vulnerable communities, without advancing its purpose to combat trafficking. It must be repealed,” said Rebecca Cleary, DSW staff attorney and attorney for Amici Curiae.

Proponents of the law argue that fighting human trafficking, a heinous and violent crime, is worth broad internet censorship. However, the law, as written, fails to punish traffickers. Three years after it was enacted, the Government Accountability Office (GAO) found that it was an abject failure. Free speech, internet rights advocates, and law-enforcement officials have protested the law. Instead of combating trafficking, SESTA/FOSTA:

* Endangers trafficking survivors and sex workers
* Impedes law enforcement’s efforts to find victims and prosecute traffickers
* Censors free speech on the internet and endangers the livelihoods of informal service sector workers

The brief concludes, “SESTA/FOSTA is the shining example of what happens when policymakers conflate sex work and human trafficking: trafficking numbers remain the same, victims get left behind, and those facing the greatest consequences are not traffickers but already marginalized communities.” Amici curiae include DSW, The Sex Workers Project of the Urban Justice Center, Freedom Network, Brooklyn Defender Services, The Erotic Laborers Alliance of New England, Old Pros, National Coalition for Sexual Freedom, New York Transgender Advocacy Group, Free Speech Coalition, Sex Workers Outreach Project Brooklyn, Gays and Lesbians Living in a Transgender Society (GLITS), and St. James Infirmary.

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Decriminalize Sex Work (DSW) is a national organization pursuing a state-by-state strategy to end the prohibition of consensual adult prostitution in the United States. DSW works with local organizations, advocates, and lobbyists to build community support and convince legislators to stop prostitution-related arrests. Evidence shows that decriminalizing sex work will help end human trafficking, improve public health, and promote community safety.