FOSTA, Explicit Content Bans, and Free Speech

Despite jokes about the nature of the internet, sexual content has been one of the most limited types of speech online. Mechanisms that govern broad subsets of U.S. internet platforms and services set limits on sexual content that trickle down to individual transactions, website closures, and social media explicit content policies. The most notable of these mechanisms is a bill passed in March 2018, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which incorporated portions of an earlier bill, the Stop Enabling Sex Traffickers Act (SESTA). FOSTA makes internet companies liable for sex trafficking content — defined extremely broadly — on their platforms. The purpose of this paper is to provide an overview on the changes to platform policies and the site closures that have occurred in response to FOSTA and to tie them into a longer history of restrictions stemming from payment processor policies, the iOS App Store, and law enforcement action targeted at human trafficking and sex work. While platforms are free to make choices to create spaces for speech without sexual content, legislation and policies that underpin the entire internet can have an undue influence on those choices.