On FOSTA and the Failures of Punitive Speech Restrictions

The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) has provoked criticism from free-speech advocates, people involved in the commercial sex trade, everyday internet users, and scholars who deem the Act dangerous and ineffective. This Note helps to explain how such a controversial law came to be. Indeed, FOSTA is part of a legacy of failed attempts at reforming laws to comport with feminist goals—in this case, ending online sex trafficking and providing relief for sex-trafficking survivors, a group that consists largely of women and other marginalized people. But FOSTA, like its predecessors, fails to provide real relief to its intended beneficiaries. Instead, it falls into the trap of punitiveness by prioritizing punishing offenders over providing meaningful relief for sex- trafficking survivors. By shifting the focus away from punitiveness and toward actual aid, this Note proposes a solution that helps sex-trafficking survivors without endangering free internet speech, consensual sex workers, or others currently affected by FOSTA’s speech restrictions. This solution accords with both First Amendment doctrine and much of the feminist consensus on improving the lives of women, girls, and other marginalized communities