A federal appeals court panel appears likely to strike down part of a law Congress overwhelmingly passed in 2018 to crack down on online advertising websites such as Backpage that were seen as facilitating prostitution. During arguments on Wednesday in a lawsuit by advocates for legalizing prostitution, a D.C. Circuit Court of Appeals panel expressed deep skepticism about the constitutionality of language in the anti-sex trafficking law that makes it a crime to operate a computer service with the intent to promote prostitution, Politico reports. Two of the three judges on the panel, Patricia Millett and Harry Edwards, seemed inclined to rule that aspects of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA-SESTA), violate the First Amendment because it appears to criminalize efforts to legalize prostitution.
Millett and Edwards repeatedly tangled with a Justice Department attorney defending the law, Joseph Busa. The Justice Department contends that the law simply criminalizes the use of a computer service to aid and abet prostitution, but Edwards and Millett said those words weren’t used in the relevant part of the new law and that it didn’t seem to require any concrete connection to prostitution. “In my mind, it’s not an aiding-and-abetting law — we know how to write them when we want to,” said Edwards. “This doesn’t look like anything that I understand to be an aiding-and-abetting law. … That immediately tells me the government’s got great concern that the statute, as actually written, has problems. So, let’s make it something that it’s not. … My view as someone preparing the case is you just made something up.”