FOSTA Survives Constitutional Challenge–US v. Martono

This case involves the DOJ’s prosecution of, 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:

* 2H 2020 Quick Links, Part 4 (FOSTA)
* Justice Thomas’ Anti-Section 230 Statement Doesn’t Support Reconsideration–JB v. Craigslist
Sex Trafficking Lawsuit Against Craigslist Moves Forward–ML v. Craigslist
Section 230 Preempts Another FOSTA Claim–Doe v. Kik
Section 230 Protects Craigslist from Sex Trafficking Claims, Despite FOSTA–JB v. Craigslist
Facebook Still Can’t Dismiss Sex Trafficking Victims’ Lawsuit in Texas State Court
Craigslist Denied Section 230 Immunity for Classified Ads from 2008–ML v. Craigslist
2H 2019 and Q1 2020 Quick Links, Part 3 (FOSTA/Backpage)
New Paper Explains How FOSTA Devastated Male Sex Workers
FOSTA Constitutional Challenge Revived–Woodhull Freedom Foundation v. US
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