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Broad Anti-Trafficking Law Faces Its First Constitutional Challenge

Human rights groups, sex worker rights activists, a digital archive and others say they are already facing censorship.

President Trump displays the Allow States and Victims to Fight Online Sex Trafficking Act after signing it into law at The White House in April.
Chris Kleponis-Pool/Getty Images

Broad Anti-Trafficking Law Faces Its First Constitutional Challenge

Human rights groups, sex worker rights activists, a digital archive and others say they are already facing censorship.

The first lawsuit against the federal law targeting sex work online was filed late Thursday in the U.S. District Court for the District of Columbia. On behalf of plaintiffs including Human Rights Watch, the Woodhull Freedom Foundation, and the Internet Archive, along with an individual sex workers’ rights activist, the complaint argues that the law, Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865), is a violation of the First and Fifth Amendments. The plaintiffs are also asking for a preliminary injunction.

The law has resulted in online censorship that conflates the practice of sex work with health and human rights advocacy for sex workers, the complaint alleges. “This law is casting great uncertainty, whether [that advocacy is] illegal,” said David Greene, civil liberties director and senior staff attorney at the Electronic Frontier Foundation, which was among the plaintiff’s counsel.

This law, also known as SESTA/FOSTA, was signed by President Trump on April 11. It was touted by its supporters as a way to combat human trafficking. “Traffickers are using [the] internet to sell women and children,” Senator Rob Portman, an Ohio Republican, said ahead of a Senate vote in March. Groups lobbying for tougher laws against sex work, like World Without Exploitation, helmed by former Brooklyn prosecutor Lauren Hersh, and the National Center on Sexual Exploitation (formerly known as Morality in Media), also pushed for the legislation.

SESTA/FOSTA goes further than targeting human trafficking. It also holds the operators of websites criminally and civilly liable if third parties were found to have posted content “to promote or facilitate the prostitution of another person.” SESTA/FOSTA also gives state attorneys general the power to bring civil actions against the operators of these websites. But as the suit points out, SESTA/FOSTA “does not define what it means to ‘promote’ or ‘facilitate’ prostitution, nor does it specify what constitutes ‘the prostitution of another person,’ even though ‘prostitution’ is not defined in federal law.”

The broad language, the suit continues, could also extend to “persons who engage in broad categories of protected speech that makes sex work safer and easier, including speech advocating for the decriminalization of sex work, harm reduction, including speech identifying bad clients and other risks to sex workers, and speech seeking to reach sex workers to inform them of their legal rights, medical resources, or other informational material.”

One of the suit’s plaintiffs, the Woodhull Freedom Foundation, a national human rights group whose mission is to “protect sexual freedom as a fundamental human right,” says it has had to censor its work supporting sex workers, which it does in part through an annual conference where sex workers lead workshops on health and rights. “Accordingly, in April, 2018, Woodhull initially responded by ceasing all online promotion of the sex work track workshops for the Summit,” the lawsuit states. “Woodhull has a well-founded fear that its efforts to promote information about sex workers on the Internet could be construed by an ambitious prosecutor or enterprising plaintiff’s lawyer as promoting or facilitating prostitution in violation of FOSTA.”

Another plaintiff, the international group Human Rights Watch (HRW), says FOSTA could impede its efforts to advocate the rights of sex workers, including its support for the decriminalization of sex work. “HRW relies heavily on individuals spreading its reporting and advocacy through social media,” Dinah PoKempner, HRW general counsel, said in a statement issued by EFF. “We are worried that social media platforms and websites may block the sharing of this information out of concern it could be seen as demonstrating a ‘reckless disregard’ of sex trafficking activities under FOSTA. This law is the wrong approach to the scourge of sex trafficking.”

Because of the law’s vagueness, other plaintiffs alleging harm include a digital library that would now need to scrutinize the millions of pages it compiles for any suggestion of sex trafficking and  a massage therapist whose business has been banned from Craigslist.

For years, EFF has lobbied against attempts to limit what the group calls “the most important law protecting internet free speech”: Section 230 of the Communications Decency Act (CDA). Pro-SESTA/FOSTA groups said Section 230 made it impossible to hold websites like Backpage accountable if its users were trafficked. This was not the case, as was proved when the Department of Justice seized and shut down Backpage days before SESTA/FOSTA went into effect.

EFF sees FOSTA as “the most broadly based and comprehensive legislative censorship of Internet speech since Congress passed the anti-indecency provisions of the CDA in 1996,” the complaint states. This also isn’t the first time such online speech restrictions targeting information about sexuality, rights, and health have been challenged. After the CDA was passed in 1996, many of its original provisions, including one that prohibited the transmission of material “intended for producing abortion,” were struck down in court.

The broadness of the law led to a near-immediate chilling effect. Even before President Trump signed SESTA/FOSTA, some websites began removing sex workers’ content, along with any content they believed could be construed as a violation of the law. Some ad websites, like Cityvibe, went offline completely. Craigslist replaced its Personals section with a notice stating, “US Congress just passed HR 1865, ‘FOSTA,’ seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline.”

With these site closures and takedowns, groups and lobbyists who backed SESTA/FOSTA declared victory. At the same time, sex workers reported that as a result of the law, they lost access to “bad date” lists tracking abusive and violent clients, along with the ad sites that  allowed them to find clients independent of third parties. All this is why sex workers’ rights groups opposed SESTA/FOSTA, along with some anti-trafficking groups and women’s and LGBTQ rights groups.

Greene of EFF said he is concerned that the confusion the law has created is no accident. “The law is vague. It’s ambiguous. I think that’s completely purposeful by Congress,” he told The Appeal. “You don’t triple up on words like facilitate, support, assist, promote—unless you want to make sure you are going to capture all situations. But you can see how it’s at best uncertain whether advocacy for decriminalization [is] facilitating prostitution, because the law typically defines facilitation as just to make something easier. Are you making prostitution easier when you are offering resources to sex workers on how to do so safely?”

Mayors Who Care About Child Separation Should Look in Their Own Backyards

Families are torn apart by the criminal justice system every day.

A bipartisan group of U.S. mayors visited a border crossing near El Paso, Texas, recently.
Joe Raedle/Getty Images

Mayors Who Care About Child Separation Should Look in Their Own Backyards

Families are torn apart by the criminal justice system every day.

Last week, about 20 mayors from across America, including New York Mayor Bill de Blasio and Los Angeles Mayor Eric Garcetti, met in Tornillo, Texas, 35 miles south of El Paso and two miles from the Mexico border. The bipartisan group had traveled to the small town as a gesture of solidarity with the hundreds of children trapped in a government-run tent city there. The Trump administration had forcibly separated these children from their parents, and they were suffering alone, with no idea when they would see their parents again.

Even within spitting distance of the tent city, there was little the mayors could do. They tried to enter the camp, but were unsurprisingly denied access. Instead, they left pairs of children’s shoes on the sidewalk outside. The hope, although surely not the expectation, was that the shoes would be given to the children in detention. Then the mayors held a press conference. “They don’t know when they’re going to see their parents again,” de Blasio said. He and his peers surrounded the microphone, shiny from sweat in the 102-degree heat. “These kids have been traumatized. These kids are suffering physically and mentally.”

The U.S. Conference of Mayors official statement echoed the same sentiment, calling on the Trump administration to “immediately reverse these destructive policies and allow families apprehended to remain together to the extent possible, to help avoid the heartbreak and irreversible trauma of forced separation.”

It was a supportive gesture on the part of the mayors, an effort to bring more attention to the terror these children are being subjected to. The sound of children calling for their parents, unsure if they will ever see them again. The pictures of terrified, tired, and traumatized children. All of it is unbearable.

But it is not exactly unprecedented. As many have pointed out over the past few weeks, the separation of children, especially brown and Black children, from their parents has centuries of precedence in American history. During slavery, children were regularly taken from their parents arms the minute they could turn a profit. They were very often never reunited with their loved ones, even after slavery had been abolished. And America also ripped Native children away from their parents, sending them to “boarding schools” whose primary goal was assimilation.

And it continues. De Blasio’s statement in Texas was breathtakingly unaware. In cities across the country, including Los Angeles and New York, local elected officials are facilitating family separation every day.  

In America there are 10 million children who, at some point in their lives, have had a parent incarcerated. Not all of these parents have actually been convicted of a crime. Many of them spent days or weeks or months in jail just because they couldn’t afford to pay bail. Like the parents apprehended at the border, many of those jailed or imprisoned in the U.S. are simply accused of a misdemeanor. And, again, children of color are more likely to suffer: One in nine Black children has a parent in prison or jail, compared to one in 28 Hispanic children, and one in 57 white children.

Much of this parental incarceration happens in the very cities these mayors represent. In New York, about 17,500 people are arrested each year for marijuana possession, and 86 percent of them are people of color. Meanwhile, in 2016, almost 4,000 people at Rikers Island at any given time were in jail because they couldn’t afford bail. Los Angeles County has the biggest jail in America, housing an average of 19,000 people at any given time. But just last week the county approved the construction of another $2.2 billion facility. Meanwhile, Garcetti has pushed for one million more hours of policing over two years.

There are some major differences between what’s happening at the border and what happens in our jails and prisons every day. Of course, when parents are arrested we don’t round up their children en masse and throw them all in one facility. There’s no massive tent city solely for the purpose of housing children whose parents have been locked up.

But children with incarcerated parents often suffer harmful and disruptive consequences that have long-lasting impact. This is especially true of those with incarcerated mothers. Those harms are only expanding: The incarceration rate for women has exploded 700% since 1980, and 80 percent of incarcerated women are mothers. Studies have shown that 90 percent of children with incarcerated fathers live with their mothers. But only 25 percent of children with incarcerated mothers live with their fathers. Having an incarcerated father means a child is significantly more likely to be homeless. Having an incarcerated mother means they are more likely to be in foster care.

Most mayors, of course, can’t directly enact criminal justice policy. That is often done on the county level. (New York’s structure gives de Blasio more power than most mayors to impact the criminal justice system.) But these mayors also can’t impact federal immigration policy. Yet, they are speaking out against how our government is treating families simply because these parents are accused of committing a minor offense. If they feel compelled to speak out at the border, why are they not compelled to speak out at home?

The idea of separating a parent from their child over a mere misdemeanor offense—whether marijuana possession or illegally crossing a border—is reminiscent of authoritarian regimes, not a free democracy. And yet, it happens every day. Perhaps next, de Blasio can go to Rikers Island and ask about the children of those inmates. What he despises in Texas, he encourages in New York.

Mayors all have the ability to speak out about the policies that exist in their jurisdiction, and call for reform. They know how many children are parentless in Torillo. But what about their own hometowns?

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A Black Man Called The Cops Nazis--And Was Charged With A Hate Crime

A Pennsylvania hate crime statute is being used by law enforcement to punish angry arrestees.

Pennsylvania state troopers watch over a Pittsburgh protest
Chris Hondros/Getty Images

A Black Man Called The Cops Nazis--And Was Charged With A Hate Crime

A Pennsylvania hate crime statute is being used by law enforcement to punish angry arrestees.

Tempers can flare during an arrest, leading some people to say ill-advised and even cruel things.

But, where does protected speech end and criminal speech begin?

That line is being blurred by police in Pennsylvania who are using the state’s hate crime statute called ethnic intimidation—defined as “malicious intention toward the race, color, religion or national origin of another individual or group of individuals”—against people who direct vitriol at them.

On Sept. 23, 2016, Robbie Sanderson, a 52-year-old Black man from North Carolina, was arrested for retail theft in Crafton, a small town near Pittsburgh.

During the arrest, Sanderson called police “Nazis,” “skinheads” and “Gestapo,” according to an affidavit of probable cause filed by the Crafton Borough police.

For that, he was charged with a hate crime.

“This is completely ridiculous,” said Mary Catherine Roper, deputy legal director for the ACLU of Pennsylvania. “This is not what the hate crime statute was for. This is criminalizing pure speech and that violates the First Amendment.”

It all began that late September day when the police responded to a CVS Pharmacy for a possible active burglary, according to the police affidavit.

A passing motorist called police to say that she saw an older black man pulling on the rear doors of the store.

The store was open at the time, but when police arrived they found no one at the rear so they went inside.

Police then spoke with a CVS employee who identified Sanderson as the man pulling on the store’s doors; the employee told the police that the man was at the cashier station.

The police approached Sanderson by the cash registers, detained him, and searched his backpack, according to the affidavit. Inside the backpack, police allegedly found a little more than $100 worth of stolen merchandise, including beef jerky and Dr. Scholl’s shoe inserts.

After Sanderson called the police derogatory names, the affidavit states, he also told them “that’s why motherfuckers are killing y’all out here” and “all you cops just shoot people for no reason.”

And police said that Sanderson told one officer, Brian Tully, that he was going to find his wife and have sex with her.

Tully then charged Sanderson with summary retail theft for allegedly stealing the items from the CVS, as well as misdemeanor terroristic threats, institutional vandalism and resisting arrest for incidents that occurred during the arrest, according to court records.

Sanderson was also charged with “felony ethnic intimidation”—Pennsylvania’s hate crime statute—for making angry comments to the police.

Roper of the ACLU told The Appeal that ethnic intimidation is supposed to be used only when an underlying crime like making terroristic threats or simple assault is motivated by a bias or hatred of race, ethnicity, or religion. It is not supposed to be used merely because a defendant made racially driven remarks around the time of an incident if the underlying offense was not motivated by such bias.

“Where the underlying crime is shoplifting or the underlying crime is resisting arrest,” Roper explained, “none of that is motivated by ethnic bias.”

The grading of an offense—whether it is a felony or a misdemeanor—is based on the grading of the underlying offense.

So, by definition, ethnic intimidation increases the penalty for a crime by making the grading one step higher than the underlying alleged bias-motivated offense.

In Sanderson’s case, police claimed the terroristic threats charge was bias-motivated. That offense is graded as a first-degree misdemeanor, meaning the ethnic intimidation charge Sanderson faced was then upgraded to a third-degree felony.

Sanderson is not the only Pennsylvania resident to face ethnic intimidation charges for what appears to be simply making comments to the police that could be considered racist. The Appeal identified at least three other such cases in the state in 2016.

In January that year, Sannetta Amoroso, a 43-year-old Black woman from Pittsburgh, was charged with multiple counts of first-degree felony ethnic intimidation by McKees Rocks police Officer Brandy Harcha. According to police, Amoroso became angry while trying to report a crime and said “I’m going to kill all you white bitches” and “death to all you white bitches.”

Then in June, Pennsylvania State Police Trooper Robert Wareham charged Steven Ray Oller, 47, of Chambersburg, with misdemeanor ethnic intimidation for threatening officers and using a racial slur directed at a Latinx trooper during an arrest for suspected DUI.

And in August, Trooper James Welsh of the state police charged Seneca Anthony Payne, a 39-year-old Bucks County man, with misdemeanor ethnic intimidation. Payne allegedly called an officer a “Gandhi motherfucker” during a welfare check at Payne’s home.

Despite filing such charges, in 2016 these departments reported to the Pennsylvania State Police Uniform Crime Reporting System that no hate crimes occurred in their jurisdictions.

“What you have is police officers essentially punishing people for disrespect to police officers by adding on criminal charges,” Roper explained. “And that’s just inappropriate. The things they are saying are deeply offensive, but they are not criminal.”

Perhaps unsurprisingly, the ethnic intimidation charge was later dropped in all four cases, including Sanderson’s, according to court records.

Sanderson pleaded guilty to retail theft and resisting arrest and was sentenced to one year probation and ordered to pay $915 in fines and fees.

Only 12 of the 65 total cases involving ethnic intimidation in Pennsylvania in 2016 resulted in a conviction, according to The Appeal’s analysis.

Three cases were still awaiting disposition at the time of publication.

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