FOSTA Survives Constitutional Challenge–US v. Martono

January 27, 2021 · by Eric Goldman · in Content Regulation, Derivative Liability, Marketing

This case involves the DOJ’s prosecution of CityXGuide.com, which allegedly tried to pick up the online commercial sex advertising business after Backpage’s shutdown. The DOJ’s initial press release and Techdirt’s coverage of it. A grand jury indicted the site’s principal, Martono, for “promotion and facilitation of prostitution and reckless disregard of sex trafficking in violation of 18 U.S.C. § 2421A” and other non-FOSTA charges. Martono moved to dismiss on the basis that FOSTA is unconstitutional. The court disagreed.

Overbreadth. Martono challenged the words “promote” and “facilitate.” The court says: “these two terms do not stand alone and without context. FOSTA specifically criminalizes owning, managing, or operating a computer service with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person.”

The court says the “promote” and “facilitate” words are OK because they only apply to a specific third party:

FOSTA connects both promotion and facilitation to the prostitution of another person. FOSTA does not obviously criminalize speech promoting prostitution generally. Instead, it prohibits an individual from committing certain acts with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person. In this context the word “facilitates” is most clearly read as referring to conduct that aids or assists in the prostitution of another person. Thus, the use of the word “facilitates” in FOSTA does not appear substantially to restrict protected speech relative to the scope of the law’s plainly legitimate application….

“promotes” within the context of FOSTA takes on a more nuanced meaning. FOSTA explicitly prohibits individuals from performing certain acts with the intent to promote prostitution of another person. It does not prohibit promoting prostitution more generally. In this context, “promotes” can most reasonably be interpreted as “to pander” or “pimp” as the Government suggests

Thus, “FOSTA on its face does not appear substantially to restrict protected speech” and isn’t unconstitutionally overbroad.

I disagree that the words “promote” or “facilitate” are sufficiently narrow in the context of speech regulations, where content publishers take potentially legally regulated activities every time they perform their publication functions. To navigate this, the court draws a fine line, saying that publishers lose constitutional protection only when they “aid or assist” prostitution by a specific person or pander/pimp. This implies that some content publication functions don’t constitute “aid,” “assistance,” “pandering,” or “pimping,” but we’re left for now to speculate where that line is.

Had the court been less charitable to the government, the court could have said that Congress unnecessarily chose overly broad terms (“promote” and “facilitate’) with more expansive meanings than the court’s reinterpretations of “aid,” “assist,” “pander,” or “pimp.” In that scenario, the court should have said that it will not rewrite the statute for Congress to find a narrowing interpretation that makes the law constitutional.

Vague. Having narrowed the meaning of “promote” or “facilitate,” the court says they are not vague. “Prostitution” isn’t vague because it gives fair notice that it applies to cash-for-sex. The term “jurisdiction” wasn’t vague because it provided fair notice that FOSTA didn’t apply in places that have legalized prostitution.

The opinion doesn’t engage with the appellate ruling in the Woodhull case establishing that the plaintiffs in that case had standing to challenge FOSTA’s constitutionality. It cites the Woodhull opinion twice, but oddly it cites only the concurrence, not the majority opinion. I wonder how this ruling will affect the Woodhull case. This judge narrowed the scope of FOSTA in potentially important ways, but also sidestepped many thorny factual problems that might still be germane in the Woodhull case.

(Note: even if FOSTA is constitutional, it’s still a terrible policy result that hurt many communities and didn’t appear to benefit any other communities).

Case citation: U.S. v. Martono, 2021 WL 39584 (N.D. Tex. Jan. 5, 2021). Martono’s motion to dismiss.

More SESTA/FOSTA-Related Posts:

FOSTA Survives Constitutional Challenge–US v. Martono

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