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Woodhull Freedom Foundation v. United States

United States District Court, District of Columbia

September 24, 2018

Woodhull Freedom Foundation, et al., Plaintiffs,
United States of America, et al., Defendants.

          MEMORANDUM OPINION [Dkt. ##5, 16]


         On June 28, 2018, plaintiffs filed their complaint challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) ("FOSTA" or "the Act"). See Compl. ¶ 1 [Dkt. # 1]. The same day, plaintiffs filed a motion for preliminary injunction, asking this Court to enjoin the enforcement of the Act pending the resolution of this litigation. See Motion for Preliminary Injunction 1 ("Mot. for Prelim. Inj.") [Dkt. # 5]. Plaintiffs, "advocacy and human rights organizations, two individuals and the leading archival collection of Internet content," raise a bevy of claims. Id. at 2. They assert that FOSTA violates the First and Fifth Amendments to the U.S. Constitution, as well as the Ex Post Facto clause of Article I, Section 9. See Compl. ¶¶ 126-74. From plaintiffs' perspective, FOSTA offends the Constitution in a variety of ways: it is overbroad, vague, impermissibly targets speech based on viewpoint and content, pares back immunity from certain state law claims, erodes the scienter requirement, and wrongly criminalizes conduct that was lawful at the time committed. See Id. Defendants, United States and Attorney General Jefferson B. Sessions (hereinafter "defendants" or "the Government"), disagree. They argue that plaintiffs lack standing to challenge the Act's constitutionality and that, in all respects, FOSTA passes constitutional muster on the merits. For the reasons discussed below, I agree with the defendants and will DENY plaintiffs' Motion for Preliminary Injunction [Dkt. ft 5], and GRANT defendants' Motion to Dismiss ("Mot. to Dismiss") [Dkt. #16].

         I. Statutory Scheme

         The Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) ("FOSTA" or "the Act") passed the House of Representatives and the Senate on February 27, 2018 and March 21, 2018, respectively. President Donald J. Trump signed the bill into law on April 11, 2018, and FOSTA took immediate effect. 132 Stat. 1253, § 4(b).

         FOSTA adds one section to the U.S. Code, and amends three others. The Act implements the "sense of Congress" that the Communications Decency Act of 1996, codified in 47 U.S.C. § 230, "was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims." 132 Stat. 1253, § 2(1). Indeed, "websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion." Id. § 2(2). For this reason, the Act continues, "clarification of [Section 230] is warranted" in order to ensure that that section does not shield "such websites" from appropriate liability. Id. § 2(3).

         Section 2421A is the centerpiece of FOSTA and this case. There, the Act creates a federal criminal offense for owning, managing, or operating "an interactive computer service . . . with the intent to promote or facilitate the prostitution of another person," or attempting or conspiring to do so. 18 U.S.C. § 2421A(a). This offense is punishable by fine or up to ten years' imprisonment. Id. A defendant facing this charge may avail himself of an affirmative defense, namely that "the promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or facilitation was targeted." Id. § 2421A(e). The burden for establishing the affirmative defense lies with the defendant, who must establish this fact by a preponderance of the evidence. Id.

         Section 2421A further provides for an "aggravated" version of the same offense, punishable by fine or up to twenty-five years' in prison. See Id. § 2421A(b). The aggravated offense layers additional elements on top of the Section 2421A(a) base offense. Thus, Section 2421A(b) imposes criminal liability on anyone who owns, manages, or operates an interactive computer service with the intent to promote or facilitate the prostitution of another person and either (1) "promotes or facilitates the prostitution of five or more persons," see Id. § 2421A(b)(i), or (2) "acts in reckless disregard of the fact that such conduct contributed to sex trafficking[] in violation of 18 U.S.C. § 1591(a)," see Id. § 2421A(b)(ii). Section 1591(a), a preexisting provision of the criminal law, prohibits sex trafficking. See Id. § 1591(a).[1] Under Section 2421 A(c), victims of violations of Section 2421A(b) may bring civil suits in federal court to "recover damages and reasonable attorneys fees." Id. § 2421 A(c). FOSTA also directs the court to order restitution for any violation of subsection (b)(2).

         Next, FOSTA amends 47 U.S.C. § 230, the "safe harbor" of the Communications Decency Act of 1996 ("CDA"). Section 230 has two key functions. First, it immunizes interactive computer services from criminal and civil liability for content created by third parties. See 47 U.S.C. § 230(c)(1) (providing that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"); id. § 230(e)(3) (preempting conflicting state and local law); see also Bennett v. Google, LLC, 882 F.3d 1163, 1165 (D.C. Cir. 2018) ("The intent of the [Communications Decency Act] is thus to promote rather than chill internet speech."); see also Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398, 406-07 (6th Cir. 2014) ("Section 230 marks a departure from the common-law rule that allocates liability to publishers or distributors of tortious material written or prepared by others."). At the same time, however, Section 230 "encourage[s] service providers to self-regulate the dissemination of offensive material over their services." Bennett, 882 F.3d at 1165 (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)). With these two grants of immunity, Section 230 "incentivize[s] companies to neither restrict content nor bury their heads in the sand in order to avoid liability." Id.

         FOSTA clarifies the scope of Section 230's preemptive effect. The Act states that "nothing in" Section 230(c)(1) - the provision immunizing providers of interactive computer services from liability for the speech of third parties - "shall be construed to impair or limit" three categories of civil claims and criminal prosecutions. Id. § 230(e)(5). First, FOSTA makes clear that Section 230 does not preclude civil claims by victims against perpetrators and persons who "receiv[ed] anything of value from participation in a [sex trafficking] venture" under 18 U.S.C. § 1595 if such participation was "knowing" as defined in 18 U.S.C. § 1591. Id. § 230(e)(5)(A). Second, Section 230 does not foreclose state criminal prosecution if the conduct underlying the charge would have violated 18 U.S.C. § 1591. Id. § 230(e)(5)(B). And third, Section 230 does not preclude state criminal prosecution if the conduct would constitute a violation of 18 U.S.C. § 2421A, the newly-created FOSTA criminal offense. Id. § 230(e)(5)(C). These amendments to Section 230 "shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment."[2] 132 Stat. 1253, § 4(b).

         Next, FOSTA adds a definition to 18 U.S.C. § 1.591, the provision of the code that prohibits sex trafficking. There, FOSTA clarifies that the term "participation in a venture'1 means "knowingly assisting, supporting, or facilitating" sex trafficking. Id. § 1591(e)(4). The term "participation in a venture" appears elsewhere in the same section, but had previously been undefined. See Id. § 1591(a)(2) (criminalizing the knowing "participation in a venture" to cause sex trafficking of an adult by "force, fraud, or coercion" or of a minor).

         Fourth, and finally, FOSTA amends Section 1595 of the same title to authorize state attorneys general to bring civil actions in par ens patriae on behalf of residents of the state who have been "threatened or adversely affected by any person who violates" 18 U.S.C. § 1591. See 18 U.S.C. § 1595(d). In layman's terms, Section 1595 allows state attorneys general to step into the shoes of victims and bring civil suits on their behalf. Id.

         II. Parties

         The Woodhull Freedom Foundation ("Woodhull") is an advocacy and lobbying organization focused on "affirming and protecting the fundamental human right to sexual freedom." Declaration of Ricci Levy in Support of Motion for Preliminary Injunction ("R. Levy Decl.") ¶ 3 [Dkt. # 5-2]. It provides "support for the health, safety, and protection of sex workers, which include adult film performers, live webcam models, sexual wellness instructors, exotic dancers, escorts, and prostitutes." Id. ¶ 5. Woodhull "strongly opposes sex trafficking or sexual assault in any form, while advocating for the right to engage in consensual sexual activity." Id. The organization maintains a website, id. ¶ 8, blog, id. ¶ 9, and social media accounts, id. ¶ 12.

         Woodhull's "signature event" is the annual Sexual Freedom Summit, held in the Washington, D.C. area. See Id. ¶¶ 16-26. The Summit "brings together hundreds of educators, therapists, legal and medical professionals," id. ¶ 16, and features "workshops devoted to issues impacting sex workers, such as harm reductions, disability, age, health, and personal safety," id. ¶ 17. The most recent Summit took place while this litigation was pending, from August 2-5, 2018 in Alexandria, Virginia.[3] As part of the Summit. Woodhull represented that it intended to use social media, such as Facebook Live and Twitter, to reach individuals unable to attend in person. Id. ¶ 24. Livestreamed events included titles such as "Criminalization of Sex Work is a Human Rights Violation and a Fabor Rights Concern," "FOSTA! How Congress Broke the Internet," and "Sexual Freedom in the Age of Trump." See Woodhull's President, Ricci Levy, represents that the organization has "a well founded fear" of prosecution under FOSTA based on "its efforts to promote information about sex workers on the Internet." Levy Deck ¶¶ 37-38.[4]

         The second named plaintiff, Human Rights Watch ("ITRW"), monitors potential violations of human rights around the world. Declaration of Dinah PoKempner ("PoKempner Decl.") ¶¶ 2-3 [Dkt. # 5-3]. As part of this mission, HRW does research and advocacy on behalf of sex workers, including in favor of decriminalization. Id. ¶¶ 2-5. HRW's body of work includes reporting on such issues as "police searches of women for condoms as evidence of prostitution" in the United States. Id. ¶ 5. Nevertheless, like Woodhull, HRW is fiercely opposed to "[f]orced prostitution and trafficking." Id.¶ 7. And, like Woodhull, HRW details its "concern[]" about potential FOSTA liability "[d]espite the[] clear distinctions in [its] policy" between advocacy for decriminalization of consensual prostitution and opposition to forced prostitution and sex trafficking. Id. ¶ 8.[5]

         Plaintiffs also include two individuals. The first, Eric Koszyk, is a licensed massage therapist in Portland, Oregon, and the sole proprietor of Soothing Spirit Massage, a massage parlor that he has run for over a decade. See Declaration of Eric Koszyk (Koszyk Decl.) ¶¶ J-2; [Dkt. # 5-4], Fie uses Craiglist ads to attract over 90% of his customers, and finds Craigslist to be the "easiest and best way to reach clients" for his massage business. Id. ¶¶ 6, 9. Koszyk placed his ads in the "Therapeutic Services" section of Craigslist, and specified that he was "a man providing massage therapy" and that his "services were professional and therapeutic." Id. ¶ 7. Following passage of the Act, Craigslist has taken down Koszyk's ads, and has refused to allow him to post new ads. Id. ¶¶ 22-23. As a result, Koszyk represents that he "no longer [has] a place on the website to advertise [his] services as a licensed massage therapist." Id. ¶ 23.[6]

         Jesse Maley is a self-described advocate for "sex workers' health, safety, and human rights." Declaration of Jesse Maley (Maley Decl.) ¶ 1 [Dkt. # 5-5]. In her professional life, Maley goes by the name "Alex Andrews." Id. ¶ 2.[7] Maley co-founded and continues to manage a website entitled ("Rate That Rescue"), a "sex worker-led, public, free community effort" intended to educate sex workers about organizations used by sex workers. Id. ¶ 13. The term "Rescue" refers to so-called rescue organizations, which seek to "assist or rescue sex workers." Id. ¶ 14. Some rescue organizations, at least in Maley's view, do more harm than good by failing to distinguish between consensual and coerced sex work and "treat[ing] all sex workers as victims." Id. ¶ 16.

         With this in mind, Maley co-founded Rate That Rescue in order to inform and educate sex workers about the nature and mission of various rescue organizations. Since its founding in 2015, the website has expanded to provide information on all manner of organizations "unrelated to . . . sex work," but nevertheless relied on by sex workers. Id. ¶ 17. Those include organizations that address substance abuse, health care, and child care. Id. ¶¶ 17, 22. Listings of organizations specify basic information - a brief description of the organization, contact information, the type of service offered - and include ratings on a 1 to 5 scale by users, as well as comments by those users. Id. ¶¶21-22.

         Rate That Rescue relies on ratings and reviews added by unpaid, volunteer third parties. See Id. ¶ 25. It does so on the thinking that sex workers who have received services from organizations will be in the best position to rate their effectiveness. Id. ¶ 18. Users, acting by name or anonymously, can create listings for particular organizations and post reviews on existing listings. Id. ¶ 19. Rate That Rescue also allows the rated organizations to modify existing listings, and respond to users' comments. Id. ¶ 20.[8] In her declaration, Maley relays that, with FOSTA on the books, she is "extremely worried that Rate That Rescue is potentially criminally liable for the speech of [its] users." Id. ¶ 26. Maley's declaration discusses this concern at length, reciting various legal theories under which Rate That Rescue could be liable under FOSTA. See Id. ¶¶ 24-31.

         The Internet Archive ("the Archive") is an organization that archives internet webpages. Declaration of Brewster Kahle (Kahle Deck) ¶¶4-7 [Dkt. # 5-6]. The Archive's mission is to preserve digital materials in order to prevent them from "disappearing into the past." Id. ¶ 4. It has a function that "crawl[s]" across webpages, mapping and storing those pages in order to preserve them for future use. Id. ¶ 7. The Archive collects and stores 80 million pages per day, and includes 330 billion web pages from 1996 to the present. Id. ¶¶ 7-8. It therefore comes as no surprise that "[t]he vast majority of the material in the Internet Archive's collection is authored by third parties." Id. ¶ 4. In addition, third parties can make their own contributions to this site, supplementing the Archive's collection by uploading stored webpages from the past. Id. ¶ 13. The general public uploads roughly 20, 000 items per day to the Archive. Id. Although the Archive does "at times" remove content, it has "no practical ability to evaluate the legality of any significant portion of the third-party content that it archives and makes available." Id. ¶ 14. The Archive's founder, Brewster Kahle, avers that he is "afraid" that FOSTA will result in criminal or civil liability for the Archive. Id. ¶ 21.

         III. Procedural History

         Plaintiffs filed this complaint on June 28, 2018. See Compl. 1 [Dkt. # 1]. The same day, they moved for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a). See Mot. for Prelim. Inj. 1 [Dkt. # 5]. This Court set a hearing on July 19, 2018 for oral argument on the Motion. See 7/5/2018 Min. Order. Prior to oral argument, the Court twice extended briefing deadlines to afford the parties more time to develop their arguments. See 7/5/2018 Min. Order; 7/10/2018 Min. Order. On July 12, 2018, defendants filed their Opposition to Plaintiffs' Motion for Preliminary Injunction [Dkt. # 15] and Motion to Dismiss ("Mot. to Dismiss") [Dkt. # 16], and, on July 17, 2018, plaintiffs filed a Reply in support of their Motion for Preliminary Injunction ("Pis.' Reply") [Dkt. # 17] and, on July 29, 2018, an Opposition to defendants' Motion to Dismiss [Dkt. #19].

         At the hearing, plaintiffs requested a ruling on their motion for preliminary inj unction prior to Woodhull's Sexual Freedom Summit, scheduled for August 2-5, 2018. I advised the parties that, due to plaintiffs' decision to wait to challenge FOSTA until months after its passage, as well as the novelty of the issues presented in plaintiffs' complaint, this Court would not be in a position to rule and issue a lengthy opinion within the two weeks remaining prior to the Summit. 7/19/2018 Mr'g Tr. 13:25-15:9 [Dkt. # 23]. Nevertheless, I pledged to issue an opinion as soon as practicable, and gave the parties the opportunity to supplement their briefing within seven days of the publication of the hearing transcript. Id. 41:5-8, 42:16-19. ...

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