72 F.4th 1286
D.C. Cir.2023Background
- Congress enacted FOSTA (2018) to combat online sex trafficking, creating 18 U.S.C. § 2421A, amending 18 U.S.C. § 1591(e)(4) and § 1595, and clarifying that 47 U.S.C. § 230 immunity does not cover federal sex-trafficking violations or related civil/state actions (and stating that clarification applies retroactively).
- §2421A makes it a felony to own/manage/operate an online platform with the intent to "promote or facilitate" another's prostitution; aggravated penalties apply for multiple victims or reckless contribution to trafficking.
- Plaintiffs (Woodhull Freedom Foundation, advocacy orgs, Internet Archive, and individuals) brought a pre-enforcement facial challenge alleging First Amendment overbreadth, vagueness, ex post facto violation, and unconstitutional amendment of §230.
- After initial standing issues were resolved by this Court, the district court on remand granted summary judgment to the government; plaintiffs appealed.
- The D.C. Circuit affirmed: it construed the challenged terms narrowly (aiding-and-abetting context), rejected overbreadth and vagueness claims, found no First Amendment bar to §230 clarifications, and upheld dismissal of the Ex Post Facto claim for lack of proper defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1591(e)(4)'s definition of "participation in a venture" is facially overbroad | Broad verbs (assist/support/facilitate) sweep protected speech | Read in context the terms mean aiding-and-abetting sex trafficking | Not overbroad; construed to reach traditional aiding-and-abetting (unprotected) conduct |
| Whether §2421A(a)/(b)(1) "promote or facilitate" is overbroad (criminalizing advocacy/safety speech) | Phrase can cover general advocacy, safety/health info, historical preservation | In criminal-law context "promote" and "facilitate" mean aid/abet re: "the prostitution of another person"; narrow reading available | Not overbroad; court adopts narrow criminal-law meaning targeting aiding-and-abetting of another's prostitution |
| Vagueness challenges to §1591(e)(4), §2421A mens rea, §2421A(b)(2) "reckless disregard", and §230(e)(5)(A) scienter | Terms lack fair notice and invite arbitrary enforcement | Ordinary criminal-law meanings (aiding/abetting, recklessness) and statutory construction supply standards | Not unconstitutionally vague; settled mens rea and interpretive tools provide adequate notice |
| Ex Post Facto challenge to retroactive §230 note allowing civil/state actions for pre-enactment conduct | Retroactive withdrawal of immunity permits prosecution/liability for past conduct | Federal defendants cannot bring the state-law suits authorized; plaintiffs sued wrong parties and sought relief against non-enforcers | Dismissed for lack of proper defendants; court declined to reach merits; dismissal without leave to amend was not abuse of discretion |
| Challenge to §230(e)(5) as content/viewpoint discrimination | Withdrawal of immunity selectively targets disfavored topics (sex work) | §230 always excluded federal criminal law; FOSTA clarified and extended that exclusion to trafficking civil/state claims; not a content-based regulation of protected speech | No First Amendment violation; amendment is a permissible clarification of immunity carve-out |
Key Cases Cited
- Reno v. ACLU, 521 U.S. 844 (1997) (overbreadth principles in strike-down of CDA provisions)
- United States v. Williams, 553 U.S. 285 (2008) (overbreadth doctrine limits; statutory construction required)
- Abuelhawa v. United States, 556 U.S. 816 (2009) ("facilitate" in criminal context has scope comparable to aiding-and-abetting)
- United States v. Stevens, 559 U.S. 460 (2010) (speech integral to criminal conduct is unprotected)
- Woodhull Freedom Found. v. United States, 948 F.3d 363 (D.C. Cir. 2020) (standing and statutory interpretations discussed on remand)
- Borden v. United States, 141 S. Ct. 1817 (2021) (formulation of recklessness in criminal law)
- United States v. Bronstein, 849 F.3d 1101 (D.C. Cir. 2017) (vagueness and statutory interpretation principles)
- Does 1-6 v. Reddit, Inc., 51 F.4th 1137 (9th Cir. 2022) (actual-knowledge standard for certain trafficking-related civil claims)