334 F. Supp. 3d 185
D.C. Cir.2018Background
- Plaintiffs (Woodhull Freedom Foundation, Human Rights Watch, two individuals, and the Internet Archive) sued to enjoin FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act of 2017), challenging it as facially unconstitutional under the First and Fifth Amendments and the Ex Post Facto Clause. Plaintiffs sought a preliminary injunction.
- FOSTA adds 18 U.S.C. § 2421A (criminalizing operating an interactive computer service with intent to "promote or facilitate the prostitution of another person") and narrows certain Section 230 immunities (47 U.S.C. § 230(e)(5)), and amends § 1591/§ 1595 related to sex trafficking.
- Plaintiffs contend FOSTA is vague/overbroad, chills protected speech and advocacy about sex work, erodes Section 230 protections, lowers scienter, and has retroactive effect. They claim a credible threat of prosecution leading to self-censorship.
- Defendants (U.S. and Attorney General) moved to dismiss for lack of Article III standing and opposed the preliminary injunction, arguing plaintiffs lack a credible threat because FOSTA requires a heightened mens rea and targets specific unlawful acts.
- The Court evaluated pre-enforcement standing (injury-in-fact, traceability, redressability), focused on plaintiffs’ proffered activities and FOSTA’s text and analogues (e.g., the Travel Act), and concluded plaintiffs failed to allege the requisite mens rea or a concrete imminent injury.
- Holding: Court granted defendants’ motion to dismiss for lack of subject-matter jurisdiction and denied the preliminary injunction as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (pre-enforcement threat) | Plaintiffs claim FOSTA’s broad/ambiguous terms ("promote"/"facilitate" and §230 amendments) create a credible threat of prosecution and chill speech/operations. | Government: FOSTA requires intent to promote/facilitate specific unlawful prostitution (heightened mens rea); plaintiffs’ activities lack that intent; no imminent credible threat. | No standing — plaintiffs failed to show a credible threat of prosecution or other cognizable imminent injury. Case dismissed. |
| Scope of §2421A / vagueness/overbreadth | §2421A criminalizes conduct that "makes prostitution easier," sweeping in advocacy, education, platforms, and third‑party content. | Text, mens rea, and context limit §2421A to intent to promote/facilitate prostitution of a particular person and to unlawful acts (affirmative defense tied to jurisdictional law). Not vague as applied. | Court rejected plaintiffs’ expansive reading; §2421A requires intent re a particular unlawful act and does not show the alleged overbreadth for standing. |
| §230 amendment effect on platform liability | Plaintiffs (site operators) argue §230(e)(5) removal of immunity for trafficking/promoting prostitution exposes them to liability for third‑party content, chilling platforms. | Govt.: §230(e)(5) only allows liability where underlying federal/state law (e.g., §2421A, §1591) is violated; those provisions require intent/knowledge making prosecution unlikely for plaintiffs’ conduct. | Court held §230 amendments do not create a credible threat because plaintiffs lack the mens rea or facts that would strip §230 protection. |
| Redressability (Koszyk/Craigslist) | Koszyk: invalidation of FOSTA would likely cause Craigslist to restore Therapeutic Services and redress his ad-loss injury. | Govt.: Restoring Craigslist postings depends on independent third-party discretion; a court victory would not likely compel Craigslist to act. | Court held redressability fails for Koszyk because relief depends on a third party’s independent choices. |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction)
- Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016) (plaintiff must plead concrete injury to establish Article III standing)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (rigorous standing inquiry for pre-enforcement challenges; imminence requirement)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (elements of Article III injury-in-fact)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement standing, realistic danger of enforcement)
- United States v. Williams, 553 U.S. 285 (2008) (unprotected speech includes offers/requests for unlawful transactions)
- Bennett v. Google, LLC, 882 F.3d 1163 (D.C. Cir. 2018) (Section 230 promotes online speech and self-regulation)