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40 Cardozo Arts & Ent. L.J. 413 (2022-2023)
Five Reflections from Five Years of FOSTA/SESTA

handle is hein.journals/caelj40 and id is 437 raw text is: FIVE REFLECTIONS FROM FIVE YEARS OF FOSTA/SESTA' KENDRA ALBERT* INTRODUCTION .....................................................................................414 I. P O SITION ALITY .................................................................................4 16 II. THE POLITICS OF SEX WORK ............................................................418 III. UNDERSTANDING FOSTA AS ONE-Two PUNCH .............................421 IV. REFLECTIONS ON FOSTA/SESTA..................................................426 A. Failures to Understand or Engage with Underlying Substantive Debates Can Hamstring Tech Policy Advocates, as they Did with FOSTA.......................................................................426 B. Mainstream Corporate Incentives to Push for Criminal Liability as an Alternative to Removal of Civil Immunity Harms, Already Criminalized Populations, and Sites that Prioritize Their Needs .......................................................................429 C. Section 230 Can Provide Internal Political Cover Within Companies for Controversial Speech, such that Even Narrow Changes Can Eliminate Spaces for Marginalized C om m unities .....................................................................432 D. Constitutional Litigation Strategy Can Be at Odds with More Pragmatic Organizing and Efforts to Push for Narrow Legal Interpretation .....................................................................434 E. Taking the Needs of Criminalized People Seriously Should Reshape Policy Thinking, Not Merely Confirm It.............436 CONCLUSION: SAFE(ER) SEX AND REPEAL § 2421A Now..................438 Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for education or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in all copies. 'Clinical Instructor at the Harvard Law School Cyberlaw Clinic and Director, Initiative for a Representative First Amendment. Thank you to Riana Pfefferkorn and Danielle Blunt, who provided foundational comments too numerous to cite on a draft of this essay, and to the editors at the Cardozo Arts and Entertainment Law Journal, who invited me to participate in the symposium on § 230. I am also grateful to the Legal Crap group chat, which has refined my legal analysis and improved my reality television taste far more than any other space I've spent time in, and to Maggie Delano, who provided copyediting assistance and pizza. 413

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