FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US

January 27, 2020 · by Eric Goldman · in Content Regulation, Derivative Liability, Marketing

The DC Circuit revived the EFF-led constitutional challenge to FOSTA, holding that at least two of the plaintiffs have standing. This raises the specter that key parts of FOSTA might still be struck down as unconstitutional.

Among other things, FOSTA created a new crime to “facilitate” or “promote” prostitution. The key question is what “facilitate” and “promote” means in this context. The majority says those verbs have many and wide-ranging meanings, and the verbs aren’t contextualized by other adjacent verbs that imply they only apply to financial transactions. Thus, “facilitate” could mean “to make easier” or it could be co-extensive with criminal aiding and abetting (the concurring judge’s view).

Under either definition, the court says Alex Andrews has standing based on these complaint allegations:

Andrews founded a sex worker-led, community forum called Rate That Rescue. Rate That Rescue operates as a ratings and review website, hosting content created by both organizations that provide services to sex workers and the sex worker community. Rate That Rescue allows sex workers to share information about products or services that they commonly use, such as payment processors, like PayPal. Such discussions may, for example, facilitate prostitution by providing sex workers and others with tools to ensure the receipt of payment for sexual services. Because Andrews has alleged that she intends to host such discussions on her website, her intended conduct is arguably proscribed by FOSTA. And because Rate That Rescue has thousands of users, Andrews’ intended conduct is also arguably proscribed by the aggravated offense provision….

[The DOJ] never suggested that the terms “promote” and “facilitate” are to be narrowly understood to focus on classified advertising websites, like Backpage.com, and to exclude information sharing websites like Rate That Rescue. [Nor have the state AGs disavowed their own prosecutions.]

This is good news for purposes of standing, but it’s a terrifying discussion for the statutory interpretation more generally. Literally, the court is saying that FOSTA could reach tertiary defendants, i.e., the sex worker (the primary criminal in this scenario) => support service like credit card processing (secondary defendant) => review site of support service (tertiary defendant). What are the natural boundaries of this liability theory? Indeed, the court says “FOSTA’s text does not limit its scope to ‘bad-actor websites,’ or even to classified advertising websites.” This helps distinguish the case from Backpage’s challenge to the SAVE Act (Backpage v. Lynch, surprisingly not cited), which applied to “advertisements” and thus has a more limited scope than FOSTA.

Alex Yelderman recently explained the crazy sex trafficking lawsuits being brought against distant tertiary defendants like MailChimp and Salesforce. Per this court’s construction of the word “facilitate,” these cases are looking less crazy (at least in terms of FOSTA’s scope, though not all of the cases actually rely on FOSTA). Then again, it seems that such an expansive reading virtually ensures the statute’s unconstitutionality, at least with respect to applying to pure speech like review sites.

Koszyk also has standing because “Craigslist removed Koszyk’s advertisements and ‘shut down its Therapeutic Services section in response to FOSTA’s passage,’ and Koszyk alleges that he has not been able to post on Craigslist since, thereby drying up his client base.”

Case citation: Woodhull Freedom Foundation v. United States, 2020 WL 398625 (D.C. Cir. Jan. 24, 2020)

More SESTA/FOSTA-Related Posts:

FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US

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