United States District Court, District of Columbia
MEMORANDUM OPINION [Dkt. ##5, 16]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
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].
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).
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).
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.
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). 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).
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.
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." 132 Stat. 1253, § 4(b).
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).
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.
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.
"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. 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
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 ¶¶
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.
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.
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. Maley co-founded and
continues to manage a website entitled
ratethatrescue.org ("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.
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.
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. ¶
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.
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.
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].
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. ...