948 F.3d 363
D.C. Cir.2020Background
- Congress passed FOSTA (2018) to narrow Section 230 and to add 18 U.S.C. § 2421A, criminalizing owning/operating an "interactive computer service" with the intent to "promote or facilitate the prostitution of another person," and authorizing related civil and state enforcement.
- After FOSTA, online platforms (e.g., Craigslist) removed personals/Therapeutic Services sections; Eric Koszyk (massage therapist) lost his primary ad venue and alleged economic and First Amendment injury.
- Plaintiffs included advocacy and information organizations (Woodhull, Human Rights Watch, Internet Archive), Alex Andrews (operator of the Rate That Rescue forum), and Koszyk; they brought pre‑enforcement facial and as‑applied First and Fifth Amendment challenges and sought injunctive relief.
- The district court dismissed for lack of Article III standing, reasoning FOSTA focuses on specific unlawful acts and plaintiffs lacked a credible threat or redressability.
- On de novo review the D.C. Circuit held that Andrews and Koszyk plausibly alleged Article III standing: Andrews showed intended speech arguably proscribed and a substantial threat of enforcement; Koszyk showed traceable injury and that invalidation of FOSTA would likely redress his harm. The case was reversed and remanded as to those plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pre‑enforcement Article III standing (Andrews) | Andrews operates a forum (Rate That Rescue) where sex workers share information (e.g., payment processors) that could 'facilitate' prostitution; she intends to continue and faces a credible threat of prosecution under §2421A | FOSTA targets specific unlawful acts and bad‑actor websites; advocacy/education and general forums lack the requisite intent to facilitate prostitution | Andrews has standing: alleged course of conduct is arguably proscribed and the threat of enforcement is substantial |
| Causation and redressability (Koszyk) | Craigslist removed Therapeutic Services in response to FOSTA causing Koszyk’s injury; invalidating FOSTA would significantly increase likelihood Craigslist would restore the service | Koszyk’s injury flows from an independent third party (Craigslist) and thus is not traceable or redressable | Koszyk has standing: injury fairly traceable to FOSTA and a favorable decision would likely redress his injury |
| Scope of "promote or facilitate" prostitution | Terms are ambiguous and broad; could encompass conduct that "makes prostitution easier," including hosting information used in sex‑for‑pay transactions | Terms should be read in light of criminal law background (pandering, aiding/abetting) and thus limited to conduct with specific intent to promote/abet prostitution | Court did not resolve the merits; for standing it treated the statutory language as at least plausibly covering Andrews’ alleged conduct; a concurring judge favored a narrower aiding/abetting reading |
| Substantiality of enforcement threat | DOJ has not disavowed prosecutions; states and private plaintiffs can bring civil actions under amended law, increasing enforcement risk | DOJ and government statements suggest enforcement targets are narrow and distinguish harm‑reduction from promotion | Threat found substantial: federal, state, and private enforcement avenues make the threat of enforcement credible for standing purposes |
Key Cases Cited
- Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997) (context on Communications Decency Act and online speech)
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (broad interpretation of Section 230 immunities)
- Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) (Section 230 immunity for online publisher's editorial functions)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (test for pre‑enforcement standing: intent, arguable proscription, credible threat)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (Article III standing framework)
- Babbitt v. United Farm Workers, 442 U.S. 289 (1979) (credible threat standard for pre‑enforcement challenges)
- Information Handling Servs., Inc. v. Defense Automated Printing Servs., 338 F.3d 1024 (D.C. Cir. 2003) (treat plaintiff's statutory‑reading as correct at motion‑to‑dismiss when injury is based on defendant's statutory violation)
- Matthew A. Goldstein, PLLC v. U.S. Dep’t of State, 851 F.3d 1 (D.C. Cir. 2017) (recognizing that alleged desired conduct that might trigger enforcement supports standing)
- Klamath Water Users Ass’n v. FERC, 534 F.3d 735 (D.C. Cir. 2008) (standard for redressability when relief depends on third‑party actions)
- Abuelhawa v. United States, 556 U.S. 816 (2009) (discussion of limits on the meaning of "facilitate" in criminal context)