Will The Constitutionality of FOSTA/SESTA Be Challenged in Court?

One of the wisest things ever said by Groucho Marx concerned politics. The mustachioed Marx Brother said, "Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies."

This could be easily said of the Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act (FOSTA/SESTA) which was passed by a large bipartisan majority in Congress last month and officially signed into law today by President Trump.

There is nothing currently preventing law enforcement from stopping online sex trafficking of minors and this law will not stop the trafficking of a single person. Instead, the law amends Section 230 of the Communications Decency Act and targets websites such as Backpage.com (which was shut down by the federal government earlier this week without the help of FOSTA/SESTA) which can be criminally prosecuted and sued in civil court for carrying advertisements of an adult nature even if they are unaware of trafficking of minors. It effectively criminalizes speech.

FOSTA/SESTA also targets adult sex workers even though they aren't engaged in trafficking of any sort and are likely to face the same kind of civil and criminal liability now being imposed on Backpage and other websites which feature adult ads. This measure will render sex workers unable to screen their clients, force more street level prostitution and lead to increase of violence against sex workers.

Of course, sex workers are not a powerful constituency much less a group  (primarily women) which seek the limelight. Given their inclination towards discretion they are an easy group to target and heap scorn upon. Most politicians, be they Democrat or Republican, have little to gain in standing up for them.

At this point, the only way FOSTA/SESTA can possibly be stopped is through the courts. Aside from the obvious First Amendment implications, there are also concerns about the Ex Post Facto Clause (Article 1, Section 9, Clause 3 of the U.S. Constitution) which were raised by the DOJ itself in a letter written to the Chairman of the House Judiciary Committee back in February.

The question remains is who will challenge the constitutionality of FOSTA/SESTA. Who will be prepared to go public with such a challenge? With Backpage already under indictment will another website step up to the plate? Or will it be a sex worker or a group of sex workers? And what role, if any, will be played by the ACLU?

Of course, even if such a judicial challenge is successful, it will come at a cost. Such a battle could take years placing an undue burden on websites and sex workers with online sex traffickers of minors continuing to flourish. But as long as politicians insist on learning the hard way such battles will need to be fought.