Where One Marketplace Closes, (Hopefully) Another Won\u27t Open: In Defense of FOSTA

Since federal law first acknowledged the crime of sex trafficking in 2000, the internet has exploded—and sex traffickers have taken note. Traffickers have gained a platform to sell their victims to a much larger audience and with greater ease. Posting victims’ advertisements online allows traffickers to drastically expand their customer base beyond the traditional street corner. Despite congressional attempts to criminalize sex traffickers and their beneficiaries since 2000, the internet persists as an effective conduit for sex traffickers to find customers. In 2018, Congress sought to remedy this by passing legislation that expanded criminal and civil liability to websites that knowingly participate in sex trafficking by hosting sex trafficking advertisements. In part, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) amends a law that was widely understood to provide websites with total immunity from claims arising out of third-party content. Concerned with the potential for criminal prosecutions, internet service providers criticize FOSTA as an infringement on their First Amendment right to free speech. They argue that the law forces them to censor third-party users’ content and that it improperly extends to legal speech. The First Amendment generally does not restrict the content of speech, however, and its protections do not extend to speech that solicits crime. This Note will argue that FOSTA does not violate the First Amendment and is constitutionally sound at its core because sex traffickers’ advertisements solicit crime