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Woodhull Freedom Found. v. United States
Citation: 334 F. Supp. 3d 185Docket: Civil Case No. 18-cv-01552 (RJL)
Court: Court of Appeals for the D.C. Circuit; September 24, 2018; Federal Appellate Court
On June 28, 2018, plaintiffs filed a complaint challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), asserting that it violates the First and Fifth Amendments and the Ex Post Facto clause. They seek a preliminary injunction against the Act’s enforcement, arguing that it is overbroad, vague, targets speech based on viewpoint, diminishes immunity from state law claims, weakens the scienter requirement, and criminalizes previously lawful conduct. Defendants, including the United States and Attorney General Jefferson B. Sessions, counter that the plaintiffs lack standing and that FOSTA is constitutionally valid. The court agrees with the defendants, denying the plaintiffs' motion for a preliminary injunction and granting the motion to dismiss. FOSTA, signed into law on April 11, 2018, amends the U.S. Code to clarify that the Communications Decency Act of 1996 should not protect websites that promote or facilitate prostitution, particularly in cases involving trafficking. The Act establishes a federal offense under 18 U.S.C. § 2421A for managing or operating an interactive computer service with the intent to promote prostitution, punishable by fines or up to ten years in prison. Defendants can assert an affirmative defense if they can prove that the conduct was legal in the relevant jurisdiction, with the burden of proof resting on them. Section 2421A establishes an aggravated offense with penalties of fines or up to 25 years' imprisonment, adding elements to the base offense under Section 2421A(a). Criminal liability arises for individuals who manage or operate an interactive computer service to promote prostitution of another, specifically when they (1) facilitate prostitution of five or more persons, or (2) act with reckless disregard for the contribution to sex trafficking, as defined in 18 U.S.C. 1591(a). Victims under Section 2421A(b) can pursue civil damages and attorney fees in federal court, and courts are mandated to order restitution for violations of subsection (b)(2). FOSTA amends 47 U.S.C. 230, which provides "safe harbor" protections for interactive computer services against liability for third-party content. Section 230 prevents treating service providers as publishers of information from others and preempts conflicting state laws, promoting internet speech while encouraging self-regulation of offensive content dissemination. FOSTA clarifies that Section 230 does not limit civil claims by victims against sex trafficking perpetrators or parties receiving value from such ventures, nor does it preclude state criminal prosecutions for violations of 18 U.S.C. 1591 or the new FOSTA criminal offense under 18 U.S.C. 2421A. These amendments apply retroactively concerning the date of enactment. FOSTA introduces a definition to 18 U.S.C. 1591, specifying that "participation in a venture" involves "knowingly assisting, supporting, or facilitating" sex trafficking. This term, previously undefined, appears in the section that criminalizes such participation leading to adult sex trafficking through "force, fraud, or coercion," as well as trafficking of minors. Additionally, FOSTA amends Section 1595, allowing state attorneys general to file civil actions on behalf of residents adversely affected by violations of 18 U.S.C. 1591. The Woodhull Freedom Foundation (Woodhull) is an advocacy organization dedicated to protecting sexual freedom and supporting sex workers. It opposes sex trafficking and sexual assault while promoting consensual sexual activity. Woodhull organizes the annual Sexual Freedom Summit, which addresses issues pertinent to sex workers and includes educational workshops. The organization expresses a significant concern about potential prosecution under FOSTA due to its online promotion of sex worker rights. Human Rights Watch (HRW) monitors human rights globally and advocates for the decriminalization of sex work while opposing forced prostitution and trafficking. HRW's research includes documenting law enforcement practices against sex workers in the U.S. Both Woodhull and HRW share apprehensions regarding FOSTA's implications for their advocacy efforts, despite their clear stance against forced prostitution and trafficking. Eric Koszyk, a licensed massage therapist and owner of Soothing Spirit Massage in Portland, Oregon, relies on Craigslist for over 90% of his client base, considering it the most effective advertising platform. After the passage of a new Act, Craigslist removed his ads and prohibited him from posting new ones, leaving him without a means to advertise his services. Jesse Maley, also known as Alex Andrews, is an advocate for sex workers' rights and co-founder of Rate That Rescue, a website aimed at educating sex workers about various organizations, including those that assist them. The site provides user-generated ratings and reviews of organizations, with a focus on distinguishing between consensual and coerced sex work. Maley expresses concern that, under the new FOSTA law, Rate That Rescue may face criminal liability for user-generated content. The Internet Archive, led by Brewster Kahle, is dedicated to preserving digital materials, archiving approximately 80 million webpages daily, and housing a collection of 330 billion pages since 1996, primarily authored by third parties. Third parties can contribute to the Archive by uploading historical webpages, with approximately 20,000 items added daily. While the Archive does remove some content, it lacks the means to assess the legality of most third-party submissions. Brewster Kahle, the Archive's founder, has expressed concerns that the FOSTA legislation may expose the Archive to legal liabilities. The plaintiffs filed their complaint on June 28, 2018, alongside a motion for a preliminary injunction. A hearing was set for July 19, 2018, with the Court extending briefing deadlines to allow for thorough arguments. Defendants filed their opposition to the injunction and a motion to dismiss by July 12, 2018, while plaintiffs replied by July 17, 2018. The plaintiffs requested a ruling before the Woodhull Sexual Freedom Summit, scheduled for August 2-5, 2018, but the Court indicated it could not issue a ruling in that timeframe due to the complexity of the issues and the delayed challenge to FOSTA. The finalization of the briefing occurred on August 6, 2018. To obtain a preliminary injunction against FOSTA, plaintiffs must demonstrate four factors: (1) probable success on the merits, (2) likely irreparable harm without the injunction, (3) a favorable balance of equities, and (4) alignment with public interest. Conversely, defendants argue for dismissal based on a lack of subject-matter jurisdiction, claiming plaintiffs do not meet Article III standing requirements. The Court is obligated to dismiss the case if it finds no subject-matter jurisdiction at any point, with plaintiffs responsible for proving jurisdiction by a preponderance of the evidence. Plaintiffs must clearly allege facts demonstrating each element of Article III standing at the pleading stage, as established in Warth v. Seldin. In reviewing a Rule 12(b)(1) motion to dismiss based on jurisdictional grounds, the court accepts all factual allegations in the complaint as true but does not accept unsupported inferences or legal conclusions presented as facts. Similarly, under Rule 12(b)(6), the court assumes the truth of all material factual allegations, construing the complaint liberally while disregarding unsupported inferences and legal conclusions. Federal court jurisdiction is limited to cases and controversies traditionally resolvable by the judicial process, requiring plaintiffs to establish standing to sue. Standing prevents the judicial process from encroaching on the powers of the political branches and confines federal courts to their judicial role. The Supreme Court has underscored the rigorous nature of the standing inquiry, particularly when adjudicating actions involving other branches of government. Article III standing comprises three elements: (1) an injury in fact, (2) a connection between the injury and the defendant's conduct, and (3) the likelihood that a favorable judicial decision will redress the injury. The injury in fact is paramount, requiring a plaintiff to show an invasion of a legally protected interest that is concrete, particularized, and actual or imminent, rather than conjectural. The concept of imminence is flexible but must ensure that the alleged injury is not speculative and is certainly impending. Mere allegations of "possible future injury" do not satisfy the injury in fact requirement for legal standing. The Supreme Court has established that plaintiffs must demonstrate a realistic danger of sustaining a direct injury from the enforcement of a challenged statute. A credible threat of prosecution arises when a law directly targets plaintiffs, compelling them to undertake significant compliance measures or face criminal charges. This threat cannot be speculative or based solely on a subjective "chill"; instead, it requires evidence of specific present or imminent harm. The Circuit Court emphasizes that determining whether a credible threat of prosecution exists is factual and case-specific, necessitating an examination of all relevant circumstances, including enforcement history and any explicit threats. Plaintiffs claim they face a credible threat under FOSTA due to its broad reach, which they argue jeopardizes their educational and advocacy efforts related to sex work. They assert that the mere threat of prosecution itself constitutes an injury by chilling their speech. The Government counters that plaintiffs' conduct, as described in their declarations, does not fall within FOSTA's scope, thus arguing that plaintiffs lack standing due to the absence of a credible threat of prosecution. This view is supported by the requirement that plaintiffs must show their conduct is arguably prohibited by the statute. A thorough review of the plaintiffs' assertions and actual conduct is necessary to determine if they have adequately established standing, as legal conclusions presented by the plaintiffs are not binding in court. Plaintiffs, represented by the Woodhull Freedom Foundation, based their Motion for Preliminary Injunction on their annual Sexual Freedom Summit held in Virginia from August 2-5. The Summit included workshops addressing topics like disability and sex work, and utilized social media for outreach. Woodhull livestreamed events discussing the implications of FOSTA and the criminalization of sex work. While Woodhull does not claim that its activities promote prostitution, it fears that vague definitions within FOSTA could lead to legal repercussions for its sponsorship of the Summit. Specifically, Woodhull is concerned that terms like "promoting" and "facilitating" in Section 2421A are poorly defined, potentially encompassing any actions that could be interpreted as making prostitution easier. Plaintiffs argue that existing case law supports their view that merely providing a platform for speech does not constitute aiding illegal acts. However, this interpretation aligns more closely with the Government's assertion that a heightened mens rea requirement is necessary under Section 2421A, which mandates proof of intent to promote or facilitate illegal activities. Plaintiffs reference the definitions of "promote" and "facilitate" from the Oxford English Dictionary and Black's Law Dictionary. However, these definitions fail to clarify Section 2421A as a whole, as they overlook the mens rea requirement and the specific phrase "prostitution of another person," which indicates unlawful acts. The interpretation offered by plaintiffs disregards the context of the statute and the broader legal framework. Section 2421A parallels the Travel Act, which prohibits using interstate or foreign commerce facilities to promote unlawful activities, including prostitution offenses. The plaintiffs do not provide examples of prosecutions under the Travel Act that support their expansive interpretation of FOSTA. Judicial precedent, such as in United States v. Bennett, emphasizes the necessity of a close causal connection between the act of promoting or facilitating and the underlying criminal activity. Plaintiffs attempt to differentiate Section 2421A from the Travel Act by asserting that FOSTA criminalizes broad acts of promotion or facilitation, rather than specific crimes, which they argue places them at risk. However, they overlook textual elements indicating that FOSTA targets specific illegal acts of prostitution, not the broader subject of prostitution itself. The principle of statutory interpretation dictates that no part of a statute should be rendered ineffective. Section 2421A criminalizes the ownership, operation, or management of an interactive computer service with the intent to promote or facilitate "the prostitution of another person." This language specifically targets unlawful acts concerning individuals, rather than the broader topic of prostitution. Section 2421A(e) reinforces this interpretation by allowing an affirmative defense if prostitution is legal in the relevant jurisdiction, thereby linking the prohibition to existing federal or state laws. Plaintiffs argue that the statute targets speech; however, it is established that speech intended to incite illegal activities is not protected under the First Amendment. Citing precedents, the text notes that advertisements for illegal activities, such as drug sales or prostitution solicitation, lack social value and can be constitutionally restricted. The statute's mens rea requirement necessitates that the government prove the defendant intended to explicitly further illegal acts, which narrows its application. The court finds that Woodhull’s Sexual Freedom Summit does not demonstrate a significant connection to illegal prostitution necessary to meet the mens rea standard, and thus Woodhull fails to show a credible threat of prosecution or any cognizable injury for standing. Human Rights Watch, which advocates for sex worker rights and documents abuses against sex workers globally, shares similar concerns but does not establish a distinct basis for legal action. HRW reported instances of police searching women for condoms as evidence of prostitution in four U.S. cities, asserting that its advocacy makes sex work "safer and thus easier" by informing sex workers about police methods to avoid detection. HRW's activities do not indicate an intention to promote illegal prostitution, which undermines any credible threat of prosecution and, consequently, standing for a pre-enforcement challenge. Jesse Maley, also known as Alex Andrews, operates ratethatrescue.org, which aggregates third-party reviews to help sex workers avoid dangerous situations. Maley's website also provides information on services like housing and counseling that can indirectly support sex workers. She fears prosecution under FOSTA's amendments to Section 230, which limit immunity for conduct unlawful under certain U.S. Code provisions, including Section 2421A, related to prostitution. However, Maley has not demonstrated a credible threat of prosecution because she lacks the necessary mens rea to violate Section 2421A. The amendments do not affect her liability as she does not intend to promote or facilitate prostitution through her website. Her concerns about law enforcement interpreting user-generated content as promoting prostitution do not satisfy the mens rea requirement essential for prosecution under the specified laws. Maley does not claim that law enforcement could reasonably argue she manages Rate That Rescue with the intention of promoting or facilitating prostitution, as required under 18 U.S.C. 2421A(a). Mere facilitation is insufficient; Maley must have the specific intent for her actions to yield that result, which she does not assert. The record indicates that Rate That Rescue aims to provide sex workers with information based on peer experiences and lacks any revenue, being operated by volunteers without the capacity to comprehensively review user-generated content. Furthermore, there is no evidence that Rate That Rescue has hosted content related to the sex trafficking of minors, precluding liability under 18 U.S.C. 1591 and 1595. Eric Koszyk claims he has standing to sue because Craigslist removed its Therapeutic Services section in response to FOSTA, asserting he cannot run his business without it. However, he fails to prove that a court victory would likely resolve his specific injury, as it depends on the actions of a third party (Craigslist) that the court cannot predict or control. Lastly, the Internet Archive states it stores a large volume of historical web data and third-party content without the ability to assess its legality. Despite its claims of not promoting sex trafficking, the Archive expresses concern that the amendments to Section 230 could expose it to liability due to their ambiguous scope. No supporting facts exist to suggest the mens rea standard necessary to override Section 230's protections. The Internet Archive's practice of collecting large amounts of content for indefinite storage and its inability to assess the legality of that content disqualifies it from the mens rea standard required for liability under Sections 2421A, 1591, or 1595. Consequently, plaintiffs have failed to establish standing, resulting in the Court lacking subject matter jurisdiction over their claims. As a result, the Court must grant the defendants' Motion to Dismiss and deny the plaintiffs' Motion for Preliminary Injunction as moot. The excerpt also notes that while sex trafficking of minors and trafficking by force, fraud, or coercion are illegal in the U.S., the legality of prostitution in the targeted jurisdiction does not serve as a defense under 18 U.S.C. 1591(b)(2) and 2421A(e). Concerns from the Department of Justice regarding FOSTA included its necessity and potential violations of the Ex Post Facto Clause, particularly regarding retroactive penalties for acts not previously punishable. Despite plaintiffs' request for a ruling on the preliminary injunction before a Summit event, no legal actions have been reported against Woodhull for its sponsorship of the Summit. Woodhull's President indicated that the organization took steps to mitigate FOSTA liability, including self-censorship of planned articles and workshops related to sex workers, although it later chose to promote those events. Human Rights Watch expressed concerns about potential impacts of Section 2421A on social media platforms. Additionally, issues with advertising faced by licensed massage therapists on platforms like Craigslist were highlighted, along with the involvement of individuals associated with organizations advocating for sex workers' rights. SWOP USA is a national social justice network advocating for the decriminalization of sex work, operating a hotline and local chapters. SWOP Behind Bars specifically supports incarcerated sex workers through a support line, newsletter, and re-entry guide. Although not a party in the current case, SWOP refrained from acquiring a mobile application due to concerns over liability under FOSTA. Maley, associated with SWOP, disclosed a 1993 conviction for aggravated promotion of prostitution in Texas, resulting in ten years of probation, which ended in 2001. She claims to no longer operate an escort service. The excerpt discusses the standards of review for motions under Rule 12(b)(1) and 12(b)(6), noting that courts apply a more rigorous scrutiny under 12(b)(1). It emphasizes the need for plaintiffs to demonstrate Article III standing, which ensures a personal stake in the outcome, thereby justifying federal jurisdiction. The standing inquiry is distinct from the merits of the case and must be addressed before considering other factors for a preliminary injunction. The text explains that a criminal statute cannot be construed based on assumptions of government discretion. The court finds a strong textual basis supporting the government's interpretation of FOSTA, despite plaintiffs' claims regarding the broad application of Section 2421A(b). The aggravated offense under this section requires intent alongside recklessness, indicating it does not solely rely on a mens rea of recklessness. Legislative history is deemed relevant only when the statutory language is ambiguous, which the court finds is not the case here, as the language of the statute is clear and coherent.