Constitutional Challenge to FOSTA Fails–Woodhull v. US

The EFF is leading a constitutional challenge to FOSTA. The district court initially rejected standing, but the DC Circuit reversed that decision in 2020 and found standing for at least two plaintiffs. On remand, the district court rejects all of the constitutional challenges to FOSTA.

Overbreadth. As he did in his prior ruling, the district court judge endorses a narrowing construction of 2421A:

Rather than target advocacy, debate, or discussion, FOSTA is narrowly tailored to those services that are owned, operated, or managed with the intent to aid, abet, or assist specific instances of prostitution….“promote or facilitate,” the exact phrase used in FOSTA, is best read as synonymous with traditional principles of aiding-and-abetting liability.

To support his narrowing construction, the judge relies almost exclusively on Judge Katsas’ concurrence to the DC Circuit opinion rather than the majority opinion–a tell that the judge is trying to reach a conclusion that isn’t the most obvious one.

Void for Vagueness. As narrowed, the judge thinks the statute provides clear notice. Plus, the statutory knowledge requirements narrow it further.

Selective Removal of Immunity. The plaintiffs pointed out that Congress removed Section 230(c)(1) but left in place Section 230(c)(2)(A) (something that never made sense; and this quirk was highlighted for Congressional staff pre-passage). The court replies: “plaintiffs cannot point to a First Amendment principle that, generally speaking, restricts Congress’s ability to re-balance the provision of an immunity it conferred in the first place (excepting, of course, more specific First Amendment principles such as content-based discrimination).”

Viewpoint Discrimination. The court says FOSTA “is not a direct regulation of speech.” Instead, “FOSTA’s provisions at most implicate speech by imposing restrictions on internet services, which, among other things, may provide a forum or serve as a medium for speech.” That makes it content-neutral.

Deficient Scienter. The court says FOSTA requires at least knowledge, so violations won’t violate the law “unwittingly.”

Ex Post Facto. FOSTA purports to impose liability for pre-passage activity. However, the plaintiffs’ requested injunction (restricting federal government prosecutions) doesn’t apply to the parties who can seek pre-passage liability.

Thus, the court dismisses the constitutional challenge. The plaintiffs have already appealed this ruling to the DC Circuit. If I were in the majority of the prior DC Circuit opinion and saw how the judge clearly tried to work around the majority ruling (over a dozen citations to the concurrence), I would be annoyed.

Case citation: Woodhull Freedom Foundation v. US, 2022 WL 910600 (D.D.C. March 29, 2022)


* Brookings, The politics of Section 230 reform: Learning from FOSTA’s mistakes: “Perhaps members of Congress haven’t engaged more with FOSTA because the statute is, simply, embarrassing. It’s poorly & confusingly drafted, and as a result, lawmakers—even if they’re not sympathetic to sex workers—have little to show for their work.”

* Kendra Albert, Five Reflections from Four Years of FOSTA/SESTA:

1. The failure of technology policy advocates to understand or engage with underlying substantive debates over sex work hamstrung advocacy efforts and led to a failure to build meaningful coalitions both prior to FOSTA’s passage as well as after.

2. Mainstream corporate incentives to push for criminal liability as an alternative to removal of civil immunity harmed already criminalized populations and sites that prioritize their needs.

3. Section 230 provided vital cover to those inside organizations who wished to advocate for harm reduction solutions and serve marginalized populations, and thus the impact of liability removal will vary more based on the political power of groups impacted than the letter of the law.

4. Litigation strategy and messaging for constitutional challenges can be at odds with more pragmatic organizing and efforts to push for narrow legal interpretation, as it has been in Woodhull Freedom Foundation v. United States, the ongoing constitutional challenge to FOSTA/SESTA.

5. And finally, taking the needs of criminalized and marginalized populations seriously as an advocate means centering advocacy around their knowledge and needs, not just using their stories as tools to advance an existing agenda.

More SESTA/FOSTA-Related Posts

* Catching Up on a FOSTA Case–ML v. Craigslist
Facebook Loses Jurisdictional Ruling in Texas Sex Trafficking Lawsuit–Facebook v. Doe
Justice Thomas Really, REALLY Wants Section 230 Repealed (Even If He Has to Do It Himself)
Section 230 Immunizes TikTok for User-Posted Videos–Day v. TikTok
So Many Unanswered Empirical Questions About FOSTA
Another Problematic FOSTA Ruling–Doe v. Pornhub
Catching Up on Recent FOSTA Developments (None of Them Good)
Section 230 Preempts Claims Against Omegle–M.H. v. Omegle
To No One’s Surprise, FOSTA Is Confounding Judges–J.B. v. G6
FOSTA Claim Can Proceed Against Twitter–Doe v. Twitter
FOSTA Survives Constitutional Challenge–US v. Martono
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