An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)

August 13, 2018 · by Eric Goldman · in Content Regulation, Marketing

by guest blogger Alex F. Levy

Following the initial filings in Woodhull v. Sessions (summarized here), defendants filed a combined opposition to the motion for preliminary injunction and motion to dismiss (Dkt #16) on July 12th, 2018. Plaintiffs then filed a reply to the opposition to the motion for preliminary injunction (Dkt #17) on July 17th; the court held a motion hearing on July 19th, and plaintiffs filed a response to the motion to dismiss (Dkt #19) on July 26th. The plaintiffs and defendants each submitted supplemental briefings on August 6th (Dkts #21, #22). What follows is a summary of some (but not all) issues raised.

Do plaintiffs have standing to seek to enjoin FOSTA?

Plaintiffs are bringing a pre-enforcement challenge to FOSTA, which requires them to show that FOSTA is actually injuring them (as opposed to causing injury to others, or in the abstract). Because self-censorship is a cognizable harm, courts have found standing for plaintiffs reacting to a “threat [that] is latent in the existence of [a] statute” and whose conduct merely “arguably falls within the statute.” (Plaintiffs’ Opposition to Motion to Dismiss, Dkt #19, pp 4-5). In other words, the plaintiffs only need to prove that theirs is a plausible interpretation of the statute (and that under this plausible interpretation, they fear prosecution).

The government’s response has been to repeatedly reassure plaintiffs that they would not prosecute plaintiffs for their actions — a reassurance that the plaintiffs note is “gratifying but legally meaningless.” (See Supplemental Brief in Support of Plaintiffs’ Motion for Preliminary Injunction, Dkt #22, p 8). Elsewhere, the government claims that it not only would not prosecute them, but could not, claiming that “the statute on its plain terms does not reach the conduct described by Plaintiffs.” (See Defendants’ Reply in Support of Motion to Dismiss and Supplemental Motion Hearing Brief, Dkt #21, p 11). But this claim is fundamentally undermined by the government’s misunderstanding of what, exactly, plaintiffs are doing.

While the government claims that “none of [the plaintiffs’] activities would subject someone to liability under 18 U.S.C. § 2421A,” or any provision of FOSTA, the government’s reassurance is based on their misplaced perception that plaintiffs are, in fact, not working to promote or facilitate prostitution. (Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction and Motion to Dismiss Plaintiffs’ Complaint, Dkt #16, p 10). “Helping sex workers find appropriate service providers no more facilitates prostitution than rehabilitation services facilitate drug trafficking.” (Dkt #16, p 14). That may be true, but what at least one plaintiff aims to do is help sex workers engage in sex work more safely — the analogy, here, would not be to getting rehab treatment, but rather access to safer drugs. As plaintiffs point out in their reply to the opposition to the motion for preliminary injunction, the government “disregards the pleaded facts that Plaintiffs Woodhull, HRW, and Andrews intend to make sex work safer, and thus easier, raising the legitimate concern they will be found to have intended to ‘facilitate’ prostitution as that term is used in FOSTA.” (Plaintiffs’ Reply to Opposition to Motion for Preliminary Injunction, Dkt #17, p 15).

The government also notes the similarity between FOSTA and existing statutes — namely, the Travel Act, which prohibits the use of the internet to “promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,” including “prostitution offenses in violation of the laws of the State in which they are committed or of the United States.” (18 U.S.C. § 1952(a)(3), (b)). Because no one like the plaintiffs have faced prosecutions under the Travel Act, the government argues, they cannot credibly fear prosecution under FOSTA. (See Dkt #16, p 13).

In fact, this overstates the similarity between the Travel Act and 2421A. The Travel Act, unlike 2421A, requires that a defendant actually follow up on the crime (or attempt to do so). (See 18 U.S.C. § 1952(a)(3).) FOSTA’s 2421A, on the other hand, potentially criminalizes speech totally untethered from any follow-up crime. Indeed, while both the Travel Act and 2421A both criminalize certain activities associated with the promotion or facilitation of prostitution, only the Travel Act contextualizes these verbs in such a way as to limit its scope to speech in furtherance of criminal transactions. (See Dkt #19, p 48). Thus, the fact that the Travel Act has never been used to prosecute anyone like the plaintiffs is not a surprise — nor does it actually mean that plaintiffs could not be prosecuted under FOSTA, which touches on a far broader amount of speech.

Furthermore, FOSTA, unlike the Travel Act (or any other statute mentioned by either side), does not restrict itself to speech related to illegal prostitution. Rather, it relies on an affirmative defense — that is, it shifts the burden to the defendant to prove that the promotion at issue “was targeted” “where” “the promotion or facilitation of prostitution is legal.” This is wholly different from a law (like the Travel Act) which is restricted to speech associated with illegal activity (and which, as noted, only affects speech directly proposing illegal acts). An affirmative defense does not do the work of a statutory exception; in fact, the Supreme Court has recognized that “serious constitutional difficulties [are raised by a law] seeking to impose on the defendant the burden of proving his speech is not unlawful.” (Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).)

To put things more concretely, 2421A reaches “owning, managing, or operating an interactive computer service” with an intent to promote or facilitate the prostitution of another, unless the defendant can prove that he was “target[ing] [his] promotion” to a specific jurisdiction in which “the promotion or facilitation of prostitution is legal.” It seems that a defendant who was merely acting to generally promote or facilitate the prostitution of others — say, by promoting measures that would improve sex workers’ general well being — could not satisfy the affirmative defense. Perversely, this would have the effect of censoring speech in proportion to how abstract it is. It seems that plaintiffs — three of whom engage in anti-trafficking or sex-work advocacy they fear might be construed as promoting prostitution — have expressed a fear that is consistent with the text of the statute.

(The claim that “section 2421A is more narrowly drawn even than the Travel Act because the latter requires only that prostitution generally be illegal in the relevant jurisdiction, but the former also mandates that the specific acts of promotion or facilitation of prostitution be illegal in order to avoid the affirmative defense of section 2421A(e)” is unavailing. (Defendants’ Reply in Support of Motion to Dismiss and Supplemental Motion Hearing Brief, Dkt #21, p 8). As noted, the affirmative defense is not akin to a statutory exception, as it shifts the burden to the defendant to prove his innocence on the element of the crime. If 2421A were rewritten to only include the promotion or facilitation of prostitution “targeted” “where” promotion and facilitation are illegal, a different (and interesting) set of questions would be raised, including under Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U.S. 173 (1999). But those are not the issues here.)

Does FOSTA force plaintiffs to choose between following the law and exercising their constitutional rights?

Plaintiffs allege that the new law exposes them to legal liability for engaging in constitutionally-protected activities. (See Dkt #19, pp 15-16.). Three of the five plaintiffs are engaged in anti-trafficking or sex-work advocacy, and fear that their work could be construed as violative of 18 U.S.C. 2421A (FOSTA’s prohibition on owning, managing, or operating a website with the intent to promote prostitution of another) or 18 U.S.C. 1591 (which, as of FOSTA’s enactment, criminalizes knowingly benefiting from knowingly supporting an entity that knowing advertises a minor’s sexual services). (The fourth plaintiff is a massage therapist who has had difficulty advertising since the enactment of FOSTA, and the fifth is the Internet Archive, which crawls and archives the Internet, and offers permanent access to certain digital materials. The standing issues raised by these final two are distinct, and outside the scope of this post.)

As noted, if FOSTA restricts speech, at least these three plaintiffs would seem to have standing: FOSTA forces them to choose between following the law and exercising their constitutional rights. But a question that came up at the hearing, and that was subsequently addressed in supplemental filings, was: does FOSTA actually burden speech? More specifically, is a law against owning, managing or operating a website actually akin to a law regulating the content of material transmitted on such a website? The government argues that “18 U.S.C. 2421A, regulates conduct (i.e., owning, managing, or operating an interactive computer service with the intent to promote or facilitate the prostitution of another person), not speech,” and that the law should therefore not be subject to strict scrutiny. (Dkt #21, p 21).

Plainly, the answer is yes. 2421A is legally indistinguishable from a restriction on the speech itself. As plaintiffs point out in their supplemental filing, this is akin to a criminal law prohibiting the ownership, management, or operation of a printing press for the purpose of communicating a particular idea. (See Dkt #22, p 2). One may draw an even more direct analogy to a hypothetical law outlawing the ownership, management, or operation of a website for the purpose of promoting a socialist agenda, or for the purpose of promoting the political candidacy of another, to see the triviality of the distinction between a regulation of the ownership/ management/ operation and the speech itself.

To be sure, the government also argues that the underlying speech is not protected — that is, this is more akin to a hypothetical law outlawing the ownership, management, or operation of a website for the purpose of planning terrorist attacks. But whether FOSTA reaches protected speech is a distinct question from whether it reaches speakers. Assuming, for the moment, that it does reach protected speech — that is to say, assuming that a law directly prohibiting “the promotion or facilitation of the prostitution of another” would be unconstitutional — then so is a law prohibiting the ownership, management, or operation of a website for this same purpose.

To dive into that question — does FOSTA impermissibly burden speech protected under the First Amendment? Again, the answer is clearly yes. The government argues that FOSTA does not cover protected speech, because speech that merely proposes lawbreaking is not protected. “FOSTA only applies to promotion or facilitation of illegal conduct. As such, no speech subject to FOSTA qualifies as protected by the First Amendment.” (Dkt #16, p 15). But as plaintiffs repeatedly point out, that is simply false — FOSTA covers far more than just the narrow category of speech left unprotected due to its nexus to crime. “This, in a nutshell, is FOSTA’s overbreadth problem: FOSTA’s sweep is indeed ‘vast,’ but the government’s constitutional latitude for imposing restrictions on speech is far more constrained.” (Dkt #17, p 21)

(Bizarrely, defendants cite to an imaginary “Section 4(a)” that allegedly limits state prosecutions permitted by FOSTA to jurisdictions in which “promotion or facilitation of prostitution is illegal.” (Dkt #21, p 20). In fact, FOSTA’s amendment to Section 230, codified in 47 U.S.C. 230(e)(5)(c) addresses state prosecutions — but, aside from the fact that there is no Section 4(a), the lifting of Section 230 immunity for certain state prosecutions is a different issue, and its limitations have no bearing on the scope of possible federal prosecutions under 2421A.)

* * *

The parties await a ruling on the preliminary injunction and motion to dismiss. The most concerning issue, at this point, is the government’s apparent misunderstanding of what the plaintiffs, and many advocates like them, seek to do: namely, to engage in conduct prohibited under FOSTA. For reasons I have described elsewhere, violating FOSTA may be key to reducing trafficking — which is, allegedly, where this all started.

For the case filings and more, see the EFF case library.

More SESTA/FOSTA-Related Posts:

An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)

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