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These Public Defenders Want to Fight Bias From the Bench

But their push to unseat judges is drawing backlash from a surprising source—fellow Democrats.

Four public defenders running for judgeships in San Francisco. Clockwise from top left: Kwixuan H. Maloof, Maria Evangelista, Phoenix Streets, Niki Solis
Images from candidates' campaign websites

These Public Defenders Want to Fight Bias From the Bench

But their push to unseat judges is drawing backlash from a surprising source—fellow Democrats.


In early February, four longtime public defenders in San Francisco announced their plans to run for Superior Court judge, a position that would allow them to preside over the very same courtrooms where they had been defending indigent clients for years. The public defenders were targeting the seats of four judges who had been appointed by Republican governors, Pete Wilson and Arnold Schwarzenegger, the type of judges who rarely face serious challenges from either party. But instead of being greeted by local Democratic politicians with enthusiasm and encouragement, the public defenders were instead criticized for daring to run.

A week after the announcement, Assemblymember David Chiu, a Democrat from San Francisco, expressed a deep concern about the “politicization of the bench” speaking out with three local Democrats who defended the current judges (who have also described themselves as Democrats).

The blowback took some of the candidates by surprise. “I’m naive, man,” Phoenix Streets, one of the four candidates, told The Appeal. “When I started running, I thought we were going to have a conversation about the criminal justice system. … I did not realize that we were declaring war. But I’m glad we did, because that makes it much more fun.”

The four new candidates, all of whom are either Black or Latinx, hope to address the disproportionate impact of the criminal justice system on people of color in San Francisco, a famously “progressive” city. In 2016, the Department of Justice issued a 400-plus page report describing implicit bias against minorities in the San Francisco Police Department. According to a 2015 study, Black adults in San Francisco were more than seven times more likely than white adults to be arrested.

“The numbers don’t lie,” said Niki Solis, one of the public defenders running for judge. “There are numbers that show implicit bias and you need to address them. We think that San Franciscans would be well-served to go to the poll and elect critical judges. … We need to hold these [four] judges accountable and we need to say to the electorate that these numbers are stark, and they’re troubling.”

Solis, a formerly undocumented immigrant whose family arrived from Belize was she was an infant, explained that the public defenders are trying to transform the justice system wholesale. For starters, they’re focusing on diversion for those arrested and treating incarceration as an option of last resort. She believes new judges who better reflect the population they are serving could remake the justice system in a way that would minimize the worst aspects of biased policing.

California’s power brokers have traditionally refused to run challengers against whoever is appointed by the governor, because they fear an influx of money into normally staid judicial elections and they say judges are meant to be above partisan politics. But those aren’t the only reasons. Often, Solis explained, these appointments are drawn from law firms that have showered sitting judges with campaign donations and parties celebrating them. If no one runs against an appointee when the position is up for election, the judge’s name doesn’t even show up on the ballot. This lets one of the most crucial pieces of the criminal justice system, Solis argues, stay completely out of reach for anyone who isn’t politically connected.

The challengers chose these particular judges solely because they were Republican appointees and up for re-election this year, not because they were any more or less progressive than other members of the judiciary. But, as candidate Maria Evangelista recently argued in a blog post, new judges are needed to disrupt the status quo.

“Judicial elections are mandated by the California Constitution every six years to ensure there are checks and balances on judges who were given political appointments,” she wrote. “True judicial independence will come from electing judges from diverse backgrounds to eliminate implicit bias.”

Chiu disagrees that the sitting judges, two of whom are Asian, don’t represent the diversity of San Francisco. And while he doesn’t believe that incumbent judges are sacrosanct (he says he has supported challengers in the past), he thinks judges should be evaluated based on their records, not on who appointed them.

“The four judges that were selected to be opposed are all incredibly well-respected and well-qualified with long records of progressive achievements. The suggestion that simply because of who had appointed them, they were somehow less qualified to serve on the bench, I just didn’t agree with,” Chiu said in an interview.

Yet, across the country, public defenders are increasingly competing for seats in places where incumbent judges are unaccustomed to being challenged. They’re running with an eye toward transforming the criminal justice system from the most important position in the court, one that decides what evidence can be admitted, what charges can be levied, or whether a sentence truly fits the crime.

Kathryn Maloney Vahey, an assistant public defender who ran for a vacant position on the Cook County Circuit Court in Illinois last winter, explained that the county’s convoluted process for forcing a judicial election makes it so that “99.9 percent” of judges are retained. When vacancies do come up, they’re competitive affairs, and ones in which, she says, public defenders have traditionally not fared well due to their supposedly “soft” approach to punishment.

As progressive prosecutors have swept to power in Chicago, Philadelphia, and Houston, judges (who are often former prosecutors) have acted as barriers to reform. In Philadelphia, for instance, judges have so far thwarted many of District Attorney Larry Krasner’s attempts to reduce sentences for people who were given automatic life without parole as juveniles. In Cook County, Illinois, a judge got into a shouting match with a prosecutor who said the court should have offered bond to a woman who was seven months pregnant. She eventually had to give birth while being held for a probation violation. In Harris County, Texas, several judges named in a federal lawsuit continue to fight a district court ruling declaring the county’s bail system unconstitutional.  The Harris County prosecutor, Kim Ogg, supports the ruling and reforming cash bail.

For former Harris County public defender Franklin Bynum, a candidate for criminal court judge, decisions like the ones made by the judges appealing the ruling are what pushed him to run. “This system is an indefensible system. Even a lot of the local politicians who are not seen as fire-throwing radicals say this,” Bynum told The Appeal. “I’m one of a chorus of people saying the criminal justice system in Harris County is fundamentally broken and it’s run by the worst people in the county. It has to stop.”

And, in his case, change is likely. In March, Bynum won his district’s primary unopposed. His opponent in the general election easily defeated the incumbent Republican judge and has support from religious conservatives, but is considered unlikely to win. Bynum, it should be noted, is running as a Democratic Socialist, something he said the local Democratic Party has urged him to tamp down his rhetoric about.

In Cook County, which leans overwhelmingly Democrat, Vahey won her primary against the incumbent, even without the endorsement of the local Democratic Party (which endorsed the incumbent). Vahey ran alongside a slew of other public defenders, many of whom were victorious—representing something of a public defender wave in Cook County. According to Injustice Watch, “Current or former public defenders won seats in 14 of the 23 contested races they ran in,” while just two years ago, “only six current or former public defenders ran in contested races, and only one of them won.”

The candidates aren’t confined to only urban areas that have seen recent progress on criminal justice reforms. Suzanne Hayden is a public defender in Clallam County, Washington, right at the tip of the Olympic Peninsula. She’s running for a district court seat that is being vacated by Rick Porter, a judge who instituted a “pay-or-appear program” in the courts, where defendants had to pay fines, do community service, or be incarcerated, which critics say improperly punished people who were unable to pay.  The state recently passed legislation outlawing such practices. “I thought I would live and die as a public defender,” Hayden said, explaining that she hadn’t really considered running for judge before Porter left his seat and set the stage for a November election.

Even though recent successes point toward something of a trend, the fact that states have different rules or gatekeepers for how judges are elected or appointed remains a significant hurdle for many public defenders looking to get on the bench.

Todd Oppenheim, a public defender in Baltimore, experienced those challenges firsthand when he first ran for a circuit court judge seat in Baltimore in 2016, and then tried to get appointed to a judge position a year later. Neither bid worked. Judges often run together as a “slate,” Oppenheim says, pooling resources and making it extremely difficult for an insurgent candidate to make an impact in the polls. As in California, appointments to the bench in Maryland are often handed to lawyers at politically well-connected law firms, who go out of their way to make sure no one else can emerge as a viable candidate.

“The private attorneys … they go to every judge’s fundraiser, they get onto the committees on these bar associations, and one of them pulled me aside,” Oppenheim said, “and he kind of warned me after I announced my candidacy but had not filed with the state: ‘This is going to ruin your career. What are you doing?’”

The public defenders running in San Francisco are now not only up against their own party but also garnering stern editorials in the area’s major newspapers, one of which called their candidacies an “assault on an independent judiciary.” For these lawyers, the June 5 primary election represents a referendum on whether a criminal justice system run for and by the people can actually look like the “people,” instead of the well-connected few.

“As public defenders, we see [the justice system] day in and day out, and we have a unique perspective of what works and what people want done. How to treat people and how to speak to them, and speak to their issues so that they can get out of the criminal justice system,” Solis, one of the San Francisco candidates, said. “Now, more than ever, we need folks like us to stand up and be members of the judiciary.”

Announcing The Appeal Podcast

Our debut episodes feature Josie Duffy Rice on prosecutors and Melissa Gira Grant on criminalizing sex work.

Announcing The Appeal Podcast

Our debut episodes feature Josie Duffy Rice on prosecutors and Melissa Gira Grant on criminalizing sex work.


The Appeal is a new podcast about criminal justice reform, prison abolition, and everything in between. Each week we will feature in-depth interviews with those covering, working in, and most affected by the American criminal justice system. From lawyers to activists to reporters to the formerly incarcerated, The Appeal podcast will shine a light on—and help radically rethink—the largest prison state in the world.

The Appeal is available on iTunes, Soundcloud and LibSyn RSS. You can also check us out on Twitter, and Facebook.

Episode 1: District Attorneys Are The Most Powerful People You’ve Never Heard Of. With guest Josie Duffy Rice

District attorneys wield enormous power but have been historically overlooked in efforts to reform the legal system. Recently that has changed, with the rise of a bail reform movement and new primary election challenges upending the “tough on crime” status quo. Our guest Josie Duffy Rice, the host of our sister podcast “Justice in America,” will be joining us to explain why DAs are such an important—and often unseen—fulcrum of power.

Episode 2: The Misplaced Sanctimony of Criminalizing Sex Work. With guest Melissa Gira Grant

Stopping the trafficking of exploited persons is something everyone agrees is important. But recent efforts by the federal government—including the passing of Stop Enabling Sex Traffickers Act (SESTA)—exploit the good-faith desire to protect the vulnerable by criminalizing consensual sex work. These efforts have driven the business further underground, exposing sex workers to greater harm. Our guest, Melissa Gira Grant, senior reporter for The Appeal, explains.

More in Explainers

The Appeal Podcast Episode 2: The Misplaced Sanctimony of Criminalizing Sex Work

With Melissa Gira Grant, senior staff reporter at The Appeal.

Dancers protest January 2018 police raids of strip clubs in New Orleans
Photo courtesy of BARE NOLA

The Appeal Podcast Episode 2: The Misplaced Sanctimony of Criminalizing Sex Work

With Melissa Gira Grant, senior staff reporter at The Appeal.


Stopping the trafficking of exploited persons is something everyone agrees is important. But recent efforts by the federal government—including the passing of Stop Enabling Sex Traffickers Act (SESTA)—exploit the good-faith desire to protect the vulnerable by criminalizing consensual sex work. These efforts have driven the business further underground, exposing sex workers to greater harm. Our guest, Melissa Gira Grant, senior reporter for The Appeal, explains.

The Appeal is available on iTunes, Soundcloud and LibSyn RSS. You can also check us out on Twitter.

Transcript

Adam Johnson: Welcome to The Appeal podcast, I’m your host Adam Johnson. The Appeal is a podcast on criminal system reform, abolition and everything in between. Today our topic is sex work and how it’s prosecuted, who those laws harm and what a more holistic approach to ending sex trafficking would look like. Our guest today, Melissa Gira Grant, senior reporter at The Appeal and author of Playing the Whore: The Work of Sex Work.

[Begin Clip]

Melissa Gira Grant: Sometimes people have referred to sex workers as kind of the canaries in the coal mine of the internet, that a lot of the kinds of speech restrictions and activity restrictions that sex workers experience, you know, it’s a way to see sort of how this is going to shake out in other online communities. In this case I’d say it’s even worse because we aren’t paying attention. They’re almost like the Cassandra in the coal mine. You know, people who are saying like, ‘Look what’s happening to us. Like, look how our communities are under surveillance right now and look at the fear of law enforcement we have right now’ in an even greater way.

[End Clip]

Adam: Melissa has written extensively for years about the stigmatization of sex work and efforts to criminalize it under the guise of fighting traffic. Today, she joins us to discuss the most recent of such effort, the Stop Enabling Sex Traffickers Act, aka SESTA and the Allow States and Victims to Fight Online Sex Trafficking Act, generally known as FOSTA, the twin bills in the Senate and the House of Representatives respectively, which was just signed into law recently by President Trump. Proponents say the new law will protect sex trafficking victims, but many others, including sex workers and our guest, say it simply drives sex work underground, it criminalizes consenting adult activity and gives state’s attorneys general broad new sweeping powers to target the most vulnerable under the auspices of protecting them. Thank you so much for joining us Melissa Gira Grant on The Appeal.

[Fade Music]

Melissa Gira Grant: Hey Adam. Thanks for having me on.

Adam: I wanted to start by doing a hundred thousand foot overview of what the primary issue is legally. Can you explain generally what the FOSTA and SESTA law is and was for our listeners in how many have received it in the sex worker community and the broader kind of criminal legal system?

Melissa Gira Grant: Yeah, sure. I mean SESTA and FOSTA, we’ll just start there. It’s kind of a Frankenstein law. So we had this one bill that was moving through the Senate called SESTA, the Stop Enabling Sex Trafficking Act, and then we had another bill moving through the House called FOSTA, the Fight Online Sex Trafficking Act, and it is a bill that was supposed to, if you believe the people who drafted it, supported it, lobbied for it outside of Congress, uh, to stop trafficking on the internet. Only trafficking into the sex industry, which the bills framers referred to as “sex trafficking.” That’s not necessarily framing that I use just to start there. There is trafficking into forced labor of all kinds, whether that’s commercial sex, whether that’s agricultural work, whether that’s service work like in nail salons or home healthcare work, things like that. Um, but this bill wasn’t aimed at any of that. It was aimed only at trafficking into sex work as arranged on the internet or in the language of the bill as “facilitated” on the internet. So the impetus really though for all of this wasn’t all of sex work online, um, it was this one website, backpage.com, which significantly lowered sort of the barrier to entry for people who wanted to engage in sex work. If you’ve been talking to sex workers as I have over the last decade or so, you know, its pretty obvious that the internet has improved working conditions in the sex industry. And then it’s made it easier for people to run their own businesses, to place their own advertisements, to screen their own customers, to be less reliant on somebody who might exploit their labor. But at the same time it’s increased the visibility of the sex industry and it’s also made it more visible to outsiders when there is violence and exploitation in the sex industry. So people who were concerned about that and saw only that violence and exploitation, um, and particularly the exploitation of minors. If people under the age of 18, who, if anybody is under the age of 18 and they’re engaged in the sex trade, they are considered under federal law as a trafficking victim, whether or not someone actually forced them, that’s just how the law understands that activity, uh, that person’s own activity. So, you know, this is sort of the noble purpose behind it. Let’s prevent minors from being engaged in the sex trade, uh, using the internet. And as many of these laws tend to be crafted it was very, very broad. It didn’t just focus on minors, it didn’t just focus on people who are forced. The way that the law finally came together targets the entire online sex trade and not just facilitating prostitution, which is the language of the law, um, but also activities online that are sort of like ancillary or sideline to that. So, uh, one of the websites that went offline as a result of fears about how SESTA and FOSTA would be enforced was craigslist personals. And there’s a lot of different things going on on craigslist personals. Most of it is non-commercial activity, um, but because it’s a space that could be used to arrange prostitution or sex work, craigslist said, you know, ‘We’re not going to take that risk and we’re going to take this down.’ Um, so it’s quite a broad law. Um, and before it even passed, sites like craigslist and others, sensing how broadly it could be enforced, already started taking information down. And so the impact of it on sex workers has been quite immediate and quite grave.

Adam: So let’s talk about that impact. Let’s establish the stakes here. We now have some initial responses to this bill, since it’s been passed, can you give us a sense of how sex workers are responding to the law, if it is actually had any achievable effect on reducing trafficking, which is a sort of nominal purpose, um, and what the kind of general, um, environment or general mood is for those in the sex work industry?

Melissa Gira Grant: So one reason sex workers oppose this law is because they knew that it would be an attack on their ability to work independently. Um, it will be an attack on their ability to take out these low cost advertisements that meant they were not going to be in a situation where they were reliant on anybody else to arrange their work and have any oversight of how they worked. And almost immediately, uh, when I was speaking with folks, you know, just in the days after the law passed before it was even signed by the president, they were seeing not only those opportunities to advertise dry up but they were being contacted by people who were saying, ‘Oh, don’t worry, I’ll take care of you. Like I’ll get you customers.’ Um, so people who, you know, people outside the industry might regard as a pimp or a manager, you know, somebody showing up in their lives using this as an opportunity to take control of their labor and also their profits. Um, you know, there are also sex workers I spoke with that said almost immediately, you know, there was a lot of press coverage of SESTA and FOSTA.

Adam: Right.

Melissa Gira Grant:  Um, and so their past clients that they had fired either for being abusive or violent, um, started showing back up in their inboxes and on their phones trying to get them to take them back. So it’s, it is something that has actually empowered people who are in a position to exploit or be violent to sex workers and is as far as its stated purpose of preventing trafficking there is no evidence that it has done that. In fact, the stated purpose of this bill was to give a law enforcement a way to go after backpage.com explicitly and before the president signed the law, backpage.com was seized by the federal government and taken offline as a result of a criminal case that started long before SESTA and FOSTA were even up for discussion. So this whole idea that this law was needed in order to take, you know, action against backpage.com. It just wasn’t true.

Adam: One of the things you’ve written about for The Appeal has been the notion that many of the prosecutors and attorneys general who are the ones enforcing this new law or have enforced similar laws in the past, they will tell you openly that they don’t make a distinction between sex trafficking and what we would broadly consider to be sort of consensual or adult sex work. Um, can you talk to us about how much of that mentality informs this and how much and to the extent to which that makes their anti-trafficking arguments sort of really bad faith because they don’t, they don’t make a distinction between the two as I think most people would right? Most people would sort of draw a distinction between the two. But from their perspective, there really isn’t one.

Melissa Gira Grant: I would go a step further and say regardless of how you draw that distinction or if you draw that distinction, the negative impact of laws like SESTA and FOSTA or taking down backpage.com, that impact is going to fall on both people who are forced into the sex industry and people who are not forced. Um, so when it comes to like how these laws harm people, they actually don’t make a distinction either. But to back up for a sec, like, you know, there is this trend, there certainly has been over the last three or four years anyway, of prosecutors, uh, you know, saying that they are adopting this new approach to prostitution. At least that’s what they say. Um, and then this new approach, they believe that anybody engaged in selling sex, anybody who’s been charged with prostitution, comes before their office, um, that, that person, they say anyway, is a victim and should be regarded as a victim and not a criminal. That’s the rhetoric. But that doesn’t mean that those individuals aren’t being prosecuted with prostitution related offenses. That’s still happening across the country. What it seems to be the change has really rhetorical, um, in the ways that prosecutors frame activities, the same old activities that they’ve been engaged in. And if anything, you know, the rhetorical shift does damage. I don’t want to say this is just on the level of words, like it has the effect of spreading this message through the community that anybody engaged in sex work has no choices, has no agency, um, and that it’s appropriate to intervene on their behalf in whatever way law enforcement deems appropriate. So it’s, it’s a rhetorical shift that has pretty significant consequences and it drives stigma around sex work that chips away at, um, you know, the dignity and the humanity of people who engage in sex work. It describes them simply as objects.

Adam: Right. And so let’s drill down here a little bit to some, some great reporting you did earlier in the spring on the situation in New Orleans, which I think speaks to this issue of bad faith on behalf of prosecutors. There was a massive anti sex trafficking or anti-trafficking raid that happened in New Orleans strip clubs that had zero trafficking arrests. Yet they had this sort of grand press conference where they sort of gathered all the, everyone and had all the flags behind them. And they made these pronouncements about an anti-trafficking raid that uncovered actually zero trafficking. Can you talk about that and talk about how that sort of speaks to the broader use of the term “trafficking” to kind of, again, mean everything and yet nothing.

Melissa Gira Grant: This is something that it was like a multiprong effort and it was such a great case study for us to break down like, you know, how do you get from this rhetorical shift to the damage done by the rhetorical shift.

Adam: Right.

Melissa Gira Grant: So what we had in Louisiana was a charity called Covenant House, um, that was pushing this narrative that anybody engaged in the sex trade was a victim and that just the existence of commercial sex created opportunities for victimization. And so it was appropriate to go after, you know, even legal, commercial sex businesses like strip clubs, um, if your goal was to prevent trafficking. And so they got a state law passed that defined, um, anybody who is 18, 19 or 20 ineligible to dance in a strip club. And they presented this as anti-trafficking that, you know, even though the law regards anybody under the age of 18 who is forced into sex work as trafficked, in a way they sort of want to expand that and say, ‘Okay, we’re actually going to go up to 21 and we’re going to say that like, because of this sort of like, you know, special category of 18 and 19 and 20 year olds, now is sort of like quasi possibly always traffic. We’re going to say that like you can’t work in strip clubs if you’re 18, 19 or 20 years old.’ And the law was almost immediately challenged and is still unenforced. It’s still going through several layers of court challenges and dancers who are 18 and 19 and 20 challenged the law and talked about the immediate loss of income they experienced. You know, even though I wasn’t being enforced strip clubs sort of like, much like SESTA and FOSTA didn’t know how it would be enforced. And so they adopted sort of the most conservative approach to enforcement, which was, you know, people lost their jobs. And what happens when you lose your job? You know it’s not like this law replaces that income with another kind of job. All it does is it takes it away and when people are made immediately vulnerable and lose their income and everything that could come with that, right?

Adam: Right. Right.

Melissa Gira Grant: Losing your house, childcare, education, these are the things that make you vulnerable to trafficking. And these are the things that push you into situations where you have less power and control over your life and your income. Um, but that didn’t seem to be of interest to the people who are pushing this, whether it was the charities, um, you know, whether it was the press and the kinds of narratives that they told. So, you know, we saw this like 12,000 word feature from the local paper about trafficking on Bourbon Street in the strip clubs. There was no trafficking in the strip clubs. Um, and so then we get these raids on the strip clubs, right? So it’s a kind of rolling narrative, you know, we get the law changed, we get the newspapers on board-

Adam: Naturally yeah.

Melissa Gira Grant: Now we’ve got this law enforcement and then yes, the press conference where there was nothing to announce, but it’s sort of like the rhetorical bow on the whole thing, right?

Adam: Right.

Melissa Gira Grant: Like, ‘Okay, like we did it, we cracked down, we shut down these clubs, we put thousands of people out of work’ and at the end of the day, um, no, there was no trafficking.

Adam: Yeah its similar to the FBI press conferences about terrorism and then the only cases they have are the ones they contrived. And I guess they can’t, they, they have yet to figure out a way of creating Potemkin sex trafficking plots. So they, there’s a lot of smoke and very little fire.

Melissa Gira Grant: And a lot of damage. Right?

Adam: Yeah, yeah.

Melissa Gira Grant: I mean there’s still no, there’s nothing, to this point anyway, coming out of the NOPD or the State Alcohol and Tobacco Commission to address the civil rights violations the dancers experience in the course of those raids or to address their loss of income.

Adam: Are there lawsuits ongoing to your knowledge?

Melissa Gira Grant: There’s the lawsuits about the ban. The age ban is ongoing, um, concerning the 18, 19 and 20 year old dancers. Yes.

Adam: Okay. I want to talk a little bit more about the kind of glaring hypocrisy of those who supposedly care about trafficking victims because I really think this is the rub, right? The rub is, is the inconsistency both of application and of the follow through in terms of supporting people who are trafficking victims. So in FOSTA and SESTA one thing you had spoken about before is there’s no real support. There is no like material or financial support for people who are trafficking victims. This is purely a punitive law. Can you talk a bit about how that lack of support and you know, it’s very similar to kind of a supposedly pro-life types, right? Who don’t support postnatal programs and childcare programs. Can you talk about how the lack of support sort of really exposes the underlying current and the underlying political current that’s behind these laws?

Melissa Gira Grant: This really goes back to sort of the origin of these federal anti-trafficking laws and then all the state laws that followed kind of in their mold, which is that the most important thing the law can do when it comes to trafficking or the most important thing that government can do when it comes to trafficking is to produce prosecutions. There’s very little emphasis on producing safety or protection for people who’ve been trafficked. There’s even less emphasis on prevention. You know, even though the government says we believe in these three Ps of like “prevention” and “prosecution” and there’s always other Ps and we might even be up to four Ps by now, to be honest, there’s so much rhetoric around this its almost hard to keep up with it. But at the end of the day what gets prioritized is prosecution. And so then the trafficking victims as far as law enforcement is concerned is most useful to them as a witness and is most useful to them as someone who’s going to help put a quote unquote “trafficker” behind bars, to identify someone as a trafficker. Even if that person maybe wasn’t engaged in trafficking, you know, there are cases that I’m starting to come across right now of what appear to be, you know, adults who were doing sex work together, um, but because one of them was the one who had a credit card or one of them was able to purchase ads or one of them had the cell phone that the other used, that they use that, um, that relationship as a way to say, ‘Well then clearly this was the one who was forcing the other.’ Um, and that’s, that’s sort of the way that the law perceives a victim of trafficking. There’s very little, there’s very little resources and that, you know, for folks who are trafficked insofar as law enforcement is concerned, there are one hundred percent reliance on social services and community based organizations, um, to provide that support. And very rarely does that support include legal services, right?

Adam: Yeah.

Melissa Gira Grant: Because the way that many people who have been trafficked are coming into contact with law enforcement is a prostitution arrest. And so that says somebody who now is, you know, despite the rhetoric, absolutely criminalized, um, but then also sort of seen as a victim and it’s an ideal situation for that individual’s rights to be violated, you know, for law enforcement to try to get them to, to, you know, name people who are part of crimes that they were engaged in to try to wheel and deal with them and to say: ‘We won’t go after you if you’ll turn into somebody else.’ Um, or even, you know, like if they are engaged in prostitution and they’re going to go forward with those charges, that individual has a right to be defended. Right? Um, and so in a way, like when they get defined as a victim, um, what I’ve seen for example, in these specialized human trafficking courts, which we have in New York but are also, um, there’s several of them in other states. Um, they are there specifically to deal with prostitution charges, not to deal with trafficking. And they regard the individual before them as kind of a victim defendant. Right? But if they like assert their rights as a defendant saying, you know, ‘I want the charges against me to be investigated, I want to actually make use of my public defender. I want to like, you know, have the cops who said I did X, Y and Z have to like, you know, produce more than a signed affidavit. Like I want to, you know, actually pursue this case.’

Adam: Right.

Melissa Gira Grant: Um, they’re treated as if they’re like not really a victim then. So it’s this, it’s this bind where it’s like, if you assert your rights, um, you’re exerting agency and so maybe you’re not really a victim.

Adam: Right.

Melissa Gira Grant: And the hypocrisy there is so apparent. It’s like, well, are you a victim or are you a defendant? Are you a criminal? You know, if the whole ethos here is like, we shouldn’t be treating people who are victims as criminals. Like why are they in that courtroom in the first place? Why is their encounter, um, you know, why are their encounters with law enforcement still resulting in arrests?

Adam: Okay. So to that end, I know that there was only two people in the Senate who opposed the Senate version of the bill was Rand Paul and Ron Wyden of Oregon. Even our, you know, sort of woke bae, uh, Bernie Sanders was in support of the bill, as were a lot of, you know, celebrity types, um, Amy Schumer, Josh Charles, Seth Meyers, what are they not seeing? Someone who’s sympathetic or listening, who sort of feels that, okay, maybe some sex workers are thrown out of business or put in further harm, but there’s a net good. That the net good somehow prevents the trafficking of children or, or the trafficking of, of unwilling persons. What is the main thing that they’re missing?

Melissa Gira Grant: I’m going to approach it from a slightly different angle, which is to talk about someone who voted against it in the House.

Adam: Okay. Great.

Melissa Gira Grant: Representative Barbara Lee of California, uh, who’s also taken a lot of unpopular and unsupported stances in her career.

Adam: Indeed, she has historically yes.  

Melissa Gira Grant: And she is also somebody coming out of the congressional black caucus who was really instrumental in developing PEPFAR, The President’s Emergency Plan for AIDS Relief under George W. Bush. Which has, you know, done a great deal around the world to prevent HIV/AIDS, but also, um, you know, it’s also been sort of a kind of part culture war around HIV and AIDS, um, insofar as prostitution is concerned and Barbara Lee has taken very principled stances on that saying you can’t actually exclude sex workers from HIV prevention. And so it’s actually through that experience, I think, that she is able to see that there is this thing called sex work that you need to engage sex workers in making meaningful change about their own lives. So like in the HIV example, um, the federal government wanted to restrict organizations that could get access to that PEPFAR money, only to ones that were oppositional to prostitution, specifically oppositional to decriminalizing prostitution. And Barbara Lee as opposed to that. And I actually think it’s those kinds of experiences of, you know, seeing how sex workers are made marginal in these policies, seeing how sex workers are ignored and then seeing the grave material damage that can do to sex workers. In this case, their health and their rights, their ability to organize, you know, it’s essentially saying like, you can’t actually organize if you want access to healthcare. And we would understand the damage that would do, um, among women when we’re talking about, you know, abortion rights, we understand the damage that would do in LGBT communities, but very rarely do people see the damage that would do around sex work and Barbara Lee is someone who can connect those dots. And so I think that’s partially where she’s coming from when she came out in opposition of this. Wyden’s opposition is a little bit different, you know, Wyden he co-wrote the Communications Decency Act, Section 230, the part of the Communications Decency Act that was essentially gutted by SESTA and FOSTA. And he’s really unique I think among senators and sort of be being able to competently legislate and talk about the internet and its impact on our lives.

Adam: Right.

Melissa Gira Grant: And so, you know, his opposition was a little different. But I think quite complimentary, you know, understanding that, you know, people do have civil rights online, people do have a right to expression online. And when you create these sort of blanket laws, there’s, there’s a chilling effect and you know, not only are you curbing people’s free speech, but you’re also curbing people’s ability to make community, to organize, to do advocacy. Um, and those are all the things that, you know, sex workers are experiencing right now also. Like, um, I cannot underscore how difficult it is for people to even talk about how this law is impacting them online because they’re very concerned that the kinds of conversations they have about the law could make them targets for its enforcement. Um, and there’s, you know, sites like Reddit, for example, have already cracked down on their forums, um, to, you know, reduce the kinds of conversations people are having there about prostitution for fear that they’ll be construed as facilitating prostitution even if they’re not directly commercial.

Adam: Right.

Melissa Gira Grant: And so Wyden is somebody who was able to see that senators who voted for this and many, many, many congress, uh, many, many people in the House, um, you know, I don’t think that they necessarily have an opportunity to think very critically about trafficking. I think that, you know, this is an issue like um, some other kind of growing areas around criminal justice where there’s this sort of fetishization of like bipartisanship, right? Of reaching across the aisle to do something really important together.

Adam: Right. Yeah.

Melissa Gira Grant: Um, and I think that that sort of seized the day. But at the root of it is, you know, just this, this huge discomfort with wanting to talk honestly and realistically about the ability of the law to control people’s, uh, to control sex work. And that’s just not a conversation that exists in those spaces at all.

Adam: It’s very easy to demagogue too, right?

Melissa Gira Grant: Yes.

Adam: I mean you know, [Menacing voice] ‘Senator Sanders opposed the bill against sex trafficking.’ I mean, it’s sort of it, it writes itself

Melissa Gira Grant: Yeah. I think there’s, there’s real fear around that that, you know, nobody wants to be the subject of like an attack ad for that and you know, but it’s funny, like you look at some of the other things that Sanders and Kamala Harris and other senators who went for this are also doing right? They’re pushing for like more labor protections for workers across the board and to sort of expand who has access to those labor protections and they’re just not seeing sex work under the category of work. It’s very clear. Um, uh, but they’re also, I don’t think critical of how much of a failure our current laws and policies are, um, when it comes to actually preventing trafficking. And I think maybe that’s the place that this conversation needs to go. Just like if you actually do want to protect people who are trafficked, then like why are you passing laws that put them in the hands of police and prosecutors and give them so much control over their lives that, that’s actually not a winning strategy.

Adam: Right. So let’s take the Wyden example to talk a little bit more about the legal, uh, how this affects the internet. I know the Electronic Frontier Foundation, EFF, which full disclosure does receive some money from some of these organizations that are affected by the bill itself, but they have a kind of ideological stake in making sure that the internet can run freely without quelling free speech. Uh, they said quote, “Much more restrictive in what sorts of discussion–and what sorts of users– they allow, censoring innocent people in the process.” Is how they described FOSTA. Can you explain what, EFF, what the kind of free speech implications are in this, not just in terms of harming workers, but in creating a kind of environment where websites themselves are now responsible for the activities that take place on their sites in a very loose, sort of loosey goosey or kind of unclear ad hoc fashion.

Melissa Gira Grant: Yeah. I think it’s also important to say that Electronic Frontier Foundation has been around since the late nineties at least, um, and been engaged in protecting laws like CDA 230, Communications Decency Act, Section 230, which, you know, is in their framing, like enables the internet to be with the internet is in terms of being a free and open space for discussion. Um, the, these are fights they’ve been part of for a long time. Um, and actually, some of, I think there’s some controversy around like, ‘Oh, well Google funds them and Google opposes the law,’ but actually Google in the guise of being part of the Internet Association, which is a much larger kind of tech lobbying association that encompasses Facebook and Apple and many other major tech companies, they came around to support SESTA and FOSTA at the end of the day.

Adam: Why is that?

Melissa Gira Grant: I don’t know. I can speculate-

Adam: Okay. Alright that’s fair.

Melissa Gira Grant: And I can kind of like point to what Ron Wyden was saying in his floor remarks ahead of the Senate vote. There’s been a tremendous amount of pressure on internet companies-

Adam: Yes.

Melissa Gira Grant: Especially in the wake of the election to appear to like not be losing control of their platforms.

Adam: Right.

Melissa Gira Grant: And I have to wonder if SESTA and FOSTA was sort of a bone that they threw to Congress. You know?

Melissa Gira Grant: Yeah. There are subtle forms of pressure that Congress, um, historically has done. I mean obviously during the whole Julian Assange thing and WikiLeaks in 2010 and 2011 they basically just leaned on companies to stop running payment processing to WikiLeaks. They didn’t have to pass any law to do that. It was sort of a kind of backroom thing. So I mean there’s, it’s always difficult to tell where the mechanisms of pressure are coming from.

Melissa Gira Grant: Yeah. And I think in this case it was like they were facing just a lot of scrutiny from Congress for their, you know, how their platforms work and sort of what accountability do they have for how their users use them and protecting users. Um, and I just feel like this may be at the end of the day, they’re like, ‘All right, either, you know, we’re just going to stop fighting this one because we have other things to fight’ or they thought, you know, ‘If we allow this one to go, then we’ll seem like we’re good actors,’ not a hundred percent sure. Like that’s just sort of my analysis, what it looks like from here.

Adam: No I understand.

Melissa Gira Grant: Um, and the other thing about the payment processors actually, Tom Dart, the Sheriff of Cook County in Illinois he used a very similar form of pressure against Backpage in 2015 to pressure Visa and Mastercard to stop allowing Backpage to use them, um, to, you know, as payment processors essentially instead, like Backpage after that stopped allowing users to use Visa and Mastercard to purchase ads. And so that, you know, basically empowered cryptocurrency. It’s one of the main ways that people were purchasing ads on Backpage and now that is getting sort of turned into like, ‘Oh my gosh, like the dark web, cryptocurrency and Backpage,’ like they actually were using, you know, like much more conventional or legitimate forms of payment.

Adam: Right.

Melissa Gira Grant: But that was taken away from them in this effort to pressure them out of business. So anyway, it’s, I, I think that that sort of gets us into this free speech stuff in a more holistic way, which is that, um, I don’t think a lot of people understand how the internet works. Lets just start there.

Adam: Yeah.

Melissa Gira Grant:  Like including people in Congress. And you know, I have the advantage of having been a technology reporter before I covered criminal justice and actually it was my way into covering criminal justice because I looked at tech in the law. And, you know, Communications Decency Act 230, which is what SESTA and FOSTA guts, is a fundamental principle of the internet saying that, you know, for example, um, the people who host our podcast are not responsible for what you and I say. Right?

Adam: Right, exactly, let’s hope not.

Melissa Gira Grant: Let’s hope not, right? And if somebody leaves a review in iTunes or whatever other platform of the podcast, you know, Apple or whoever else runs that platform is not responsible for what that person says in that review. And also more critically if they want to take responsibility for that, right? If they want to take some moderating action, if they, you know, say for example, ‘We don’t want Nazis leaving reviews, they talk about Nazi-ism. We prefer not to see that.’

Adam: Yeah. Reasonable.

Melissa Gira Grant: Um they can’t be penalized for doing that in some cases and not others.

Adam: Right.

Melissa Gira Grant: That’s sort of a safe harbor that they have also. So when we start chipping away at that, when one special case, right, when it comes to Backpage or to prostitution, um, it doesn’t leave the door open I think for other kinds of legislation that could start chipping away, um, but in terms of the immediate, when you think of how broadly something like this can be enforced, there’s no reason that this couldn’t impact any dating website, right? There’s no reason that this isn’t going to impact, um, Tinder or Grindr. Um, you know, we’re already seeing sites that had nothing to do with sex work like for example, web directories of strip clubs going offline because they don’t know if this is something that could be enforced against them. And we’re already seeing much larger platforms like Facebook, um, I’ve seen reports anyway, of them taking action against people doing things like posting a notice to other porn performers saying this, this journalist wants to get in touch with you and talk to you about SESTA and FOSTA and people who post that having their account suspended.

Adam: Wow.

Melissa Gira Grant: They don’t know if that’s directly because of SESTA and FOSTA and that’s sort of the other panic that legislation like this can create because people no longer know what’s acceptable and what’s not.

Adam: It is oftentimes opaque and kind of capricious and that sort of leads to obviously a broader chilling effect.

Melissa Gira Grant: That’s right. That’s right. And, and it makes people very uncertain of sort of, you know, it’s so blanket the way these things are enforced. So I’ve, I’ve talked to porn performers who um, had Google Drive accounts that had, you know, their work and it related to porn, but also other things that had nothing to do with porn and who’ve had their entire Google Drive account locked out, shut down, erased. Um, and so it’s because these things are applied in this blanket way and often with, without any sort of notice or explanation that in and of itself creates this, this fear. You know, sometimes people have referred to sex workers as kind of the canaries in the coal mine of the internet, that a lot of the kinds of speech restrictions and activity restrictions that sex workers experience, you know, it’s a way to see sort of how this is going to shake out in other online communities. In this case I’d say it’s even worse because we aren’t paying attention. They’re almost like the Cassandra in the coal mine. You know, people who are saying like, ‘Look what’s happening to us. Like, look how our communities are under surveillance right now and look at the fear of law enforcement we have right now’ in an even greater way. And um, and it, you know, it has, I would say, both at The Appeal and other publications, particularly online media, um, and sort of, you know, non daily newspaper media, um, have, have actually covered these consequences.

Adam: Right.

Melissa Gira Grant: Um, and it is now part of the story of how SESTA and FOSTA is talked about. It’s quite stunning actually to see even mainstream outlets refer to this legislation as controversial when you think of how widely supported it was in Congress. And I think that has to do with, you know, the degrees to which sex workers have also made themselves very visible in this conversation.

Adam: Yeah. So about that, um, you know, we say sex workers think X and sex workers think Y, now obviously there are some sex trafficking victims who are, who are on the side of the, uh, supporting the bill. It’s difficult obviously to gauge what percent of each is in support or opposed. But what’s telling, I think, is that the World Without Exploitation, which I think is the most prominent anti-trafficking group, is not led by a former trafficking victim or a sex worker. It’s led by a former prosecutor, uh, Lauren Hersh, a former DA from Brooklyn.

Melissa Gira Grant: Yes.

Adam: So, um, to what extent are the proponents of the bill actual sex trafficking victims and, and what is the sort of breakdown on the other side versus who’s sort of leading the charge against it? Is there any, is there any way we can sort of really get a sense of that?

Melissa Gira Grant: Let’s just look at the trafficking organizations themselves for a minute. And, you know, I, I’m actually quite challenged by World Without Exploitation and how to describe them. Like I don’t really know if, I wouldn’t describe them as an anti-trafficking organization in the sense that they provide services to people who are trafficked or support, um, or even community. Um, would they primarily seemed built to do is to advocate for federal legislation. Um, and then to also like, you know, do all of the ancillary activities around that, whether that’s, you know, getting publicity or putting people out on speaking tours and all that kind of visibility for something like that. So it’s not just like they’re just going to Congress, like they’re sort of trying to create this political environment where something like SESTA FOSTA would pass and make sense. Um, and they don’t actually have to do very much work to do that either, right? Because sort of the prevailing winds are that anything we want to do to fight trafficking is okay.

Adam: Yeah.

Melissa Gira Grant: And then we have trafficking organizations or anti-trafficking organizations like the Freedom Network, who I wrote about in my first piece about SESTA and FOSTA. They are the largest network of anti-trafficking service providers in the United States. So these are people who joined frontline work to provide support to people who are trafficked. And in some cases these organizations also employ people who’ve been trafficked and have leadership in other ways, um, from people who have been trafficked and they came out against this. And their opposition then there is kind of a ripple effect where you saw some women’s health and rights organizations like the International Women’s Health Coalition or um, the Positive Women’s Network come out against this and then some LGBT civil rights organizations like Lambda Legal came out against this, the National Center for Trans Equality, ACLU wrote a letter opposing this. Um, so when you look at like all of that stacked against sort of these densely networked lobby organizations, that starts, for me anyway, to paint a picture of sort of like, okay, like, what? How does this, how is this law basically just like a personal project of a certain political ideology that is so shaped by prosecutors and law enforcement?

Adam: Yeah, I mean, I think that’s really the rub, right?

Melissa Gira Grant: Yeah.

Adam: I mean, even if you’re sensitive to these arguments and I think that a lot of the listeners may be, um, really what it boils down to, I think, because there isn’t any kind of auxiliary support network or any kind of holistic approach, it’s purely punitive. It really boils down to whether or not you think that that state’s attorneys general and prosecutors have the best interest of the poor and the destitute and immigrants at heart and given the support even from the right wing Trump administration, the notoriously anti-immigrant Trump administration and the anti immigrant Republican Party believing in that good faith and believing that they have the best interests of the most vulnerable amongst us at heart seems a huge stretch to me.

Melissa Gira Grant: Really think of it very holistically, as you’re saying, like the same administration that is gutting protections for immigrants, gutting protections for trans people, gutting the social safety net, empowering police to do more violent enforcement, um, empowering the justice system, rolling back civil rights protections within the Department of Justice. These are the people you’re going to put your chips on the table with.

Adam: Yeah. These are the great protector of women suddenly, I mean, I don’t know. Come on. (Laughs)

Melissa Gira Grant:  And that’s been the case since back to the beginning of this legislation, you know, coming up sort of in the George W. Bush era, you know, it actually gave George W. Bush sort of, in some circles anyway, like women’s rights bonafide, like you would see people from, you know, whether they were new neoconservatives like, um, Donna Hughes who writes for The New Republic and others and also is, uh, you know, had the ear of George W. Bush when it came to trafficking policy, going around saying like, ‘This is like, you know, a real feminist move from this president.’ And so I think, you know, I don’t think anybody’s naive enough to think that Trump is able to use the issue of trafficking to distract from everything else that he’s about, including the multiple acts of sexual assault he’s been charged with himself.

Adam: Right.

Melissa Gira Grant: Uh, but I, you know, one of the other people who was really loudly speaking in favor of SESTA and FOSTA, even though he can’t actually enforce it, Cy Vance, District Attorney of Manhattan going out and giving a press conference about it from his own office, followed up with another speaking engagement at the United Nations the same week. Why is Cy Vance going around speaking about how important it is to protect people from sex trafficking at the same time that his office is declining to follow up on an investigation into Harvey Weinstein at that moment? Um, and so it says something about like, well, where is your commitment really to protecting people? Um, or how much of this is really just about expanding the reach of criminalization into the lives of people who are already vulnerable.

Adam: Before we go, let’s end by saying sort of what comes next. Listeners who are listening to this and they’re concerned with maybe what the kind of next steps is for people who are opposed to this bill or opposed to its consequences both in terms of sex workers and activists. What is the next steps moving forward? What does the landscape look like? From the picture you paint it seems, it seems pretty dire. I mean the law has been passed, it’s kind of been done. What are the next steps that can be used to sort of mitigate or to ameliorate the consequences?

Melissa Gira Grant: They’re, just starting sort of, I guess, from the center and we can move outward in terms of, of sex workers own resistance to this and organizing against this. There has been a groundswell of sex worker organizing in this country that I haven’t seen in several years, um, in, in cities but also at the national level, um, on June 1st and June 2nd there are going to be different kinds of actions against SESTA FOSTA in several cities in the US and also in Washington DC. And the folks who were organizing that are doing so under the banner of Survivors Against SESTA and they have been quite visible, um, you know, throughout sort of the history of this, this bill being publicized and they were quite instrumental I think in publicizing this. And you know, this is always the story. It’s like when a community is under this kind of attack, it’s also a moment of, of great resilience and resistance in the face of it. You know, everything from people organizing like emergency funds to cover rent and childcare and tuition and electric pills for sex workers who have suddenly lost their income, um, to doing this sort of like larger policy analysis. It’s, um, that, that’s what I’m seeing on the ground and you know, in terms of like rolling the bill back or appeal, I mean, I leave that to people who are much more inside the beltway.

Adam: Right.

Melissa Gira Grant: I don’t have a lot of hope for any legislation to, to move that could, that could roll this back. Um, but I do think the place for people to be looking is how state attorneys general role with this.

Adam: Right.

Melissa Gira Grant: Because essentially, you know, facilitating prostitution on the internet has been something that could be turned into a federal crime, um, through, uh, other laws that already existed. You didn’t need SESTA and FOSTA to do that. And in fact, that’s why Backpage is under prosecution right now in Texas and also in California. But what this law did, what SESTA FOSTA did, is essentially take that power and distribute it to state attorneys general. And so I think that’s actually going to be the next battleground is you know which state attorney general is going to do the first big prosecution on this.

[Music]

Adam: Okay. Well thank you so much for joining us. That was incredibly informative.

Melissa Gira Grant: Thanks for having me.

Adam: That was Melissa Gira Grant, a senior reporter at The Appeal, author of Playing the Whore: The Work of Sex Work. You can find her on twitter @MelissaGira. It’s M-E-L-I-S-S-A-G-I-R-A and you can find much of her work at The Appeal website at theappeal.com. I’m Adam Johnson. The Appeal is produced by Florence Barrau-Adams, the executive producer is Sarah Leonard. We’ll see you next week.

 

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