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Section 230, the “Internet’s First Amendment”

January 25, 2021

By Tess Joseph

Section 230 of the Communications Decency Act protects freedom of speech online. Advocates call it the “First Amendment of the Internet.” In the words of the Electronic Frontier Foundation, Section 230 is “perhaps the most influential law to protect the kind of innovation that has allowed the Internet to thrive since 1996.”

Notably, under Section 230, websites that host speech are not legally responsible for the speech that they host. Put in practice, when an individual on YouTube “speaks” through uploading a video, YouTube does not face potential liability for the video’s content. Companies like YouTube, through their Terms and Conditions documents, may set their own limits on speech, but thanks to Section 230, they are not forced by fears of prosecution to choose between actively censoring all user content to avoid liability or completely disposing of user content altogether.

Why is Woodhull interested in Section 230? Online freedom of speech and innovation is central to the lives and livelihoods of many people, including sex workers, sexuality educators, and anyone, really, who writes or talks about sex online. The Internet allows us to connect with each other, from providing a medium to chat with loved ones to facilitating community organizing. And for many of us, the Internet is integral to our labor. Organizations across many industries and sectors of the economy rely on the Internet to carry out their duties. Sex industry websites like OnlyFans and Pornhub make it easier for some sex workers to earn their income without the associated risks of face-to-face encounters.

It follows that the political attack on Section 230, well-chronicled by XBIZ, puts many people—and, yes, many sex workers—in danger. In fact, as Gustavo Turner of XBIZ notes, the legislative pair known as FOSTASESTA carved out an exception to Section 230: whenever the state alleges instances of human or sex trafficking, liability protections are canceled. Of grave concern, FOSTA-SESTA erroneously conflates consensual sex work with trafficking, thereby putting people who use the Internet to stay safe at risk of economic and physical harm. Moreover, the legislation puts all sexual speech on the Internet at risk. In the context of content that might be construed to be related to sex work, online platforms effectively face the two aforementioned options of active censorship vs. complete disposal. The implications of a platform opting for either choice are devastating to all of us who use the Internet to communicate about sex.

We at the Woodhull Freedom Foundation celebrate Section 230’s protection of freedom of speech online, but we also recognize that for sex workers, such protection is extremely limited and under threat. This is why we filed a federal lawsuit against the U.S. District Court for the District of Columbia to challenge the constitutionality of FOSTA under the First and Fifth Amendments of the U.S. Constitution. Our lawsuit makes our position clear: we support free speech, online and offline, we support sex workers, and we support everyone for whom the Internet is an important space for experiencing sexual freedom.

Photo by bigtunaonline, Getty Images

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