FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US

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, 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:

* New Civil FOSTA Lawsuits Push Expansive Legal Theories Against Unexpected Defendants (Guest Blog Post)
Section 230 Helps Salesforce Defeat Sex Trafficking Lawsuit–Doe v. Salesforce
Latest Linkwrap on FOSTA’s Aftermath
Section 230 Doesn’t End Lawsuit Claiming Facebook Facilitated Sex Trafficking–Doe v. Facebook
New Essay: The Complicated Story of FOSTA and Section 230
Who Benefited from FOSTA? (Spoiler: Probably No One)
FOSTA’s Political Curse
FOSTA Doesn’t Help Pro Se Litigant’s Defamation Claim Against Facebook
Constitutional Challenge to FOSTA Dismissed for Lack of Standing (Guest Blog Post)
An Update on the Constitutional Court Challenge to FOSTA–Woodhull Freedom v. US (Guest Blog Post)
Indianapolis Police Have Been “Blinded Lately Because They Shut Backpage Down”
Constitutional Challenge Against FOSTA Filed–Woodhull v. US (Guest Blog Post)
Catching Up on FOSTA Since Its Enactment (A Linkwrap)
More Aftermath from the ‘Worst of Both Worlds FOSTA’
‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
What’s New With SESTA/FOSTA (January 17, 2018 edition)
New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
How SESTA Undermines Section 230’s Good Samaritan Provisions
Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
Another SESTA Linkwrap (Week of October 30)
Recent SESTA Developments (A Linkwrap)
Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
My Senate Testimony on SESTA + SESTA Hearing Linkwrap
Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity