On June 28, 2018, plaintiffs filed their complaint challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164,
I. Statutory Scheme
The Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164,
FOSTA adds one section to the U.S. Code, and amends three others. The Act implements the "sense of Congress" that the Communications Decency Act of 1996, codified in
Section 2421A is the centerpiece of FOSTA and this case. There, the Act creates a federal criminal offense for owning, managing, or operating "an interactive computer service ... with the intent to promote or facilitate the prostitution of another person," or attempting or conspiring to do so. 18 U.S.C. § 2421A(a). This offense is punishable by fine or up to ten years' imprisonment.
Section 2421A further provides for an "aggravated" version of the same offense, punishable by fine or up to twenty-five years' in prison. See
Next, FOSTA amends
FOSTA clarifies the scope of Section 230's preemptive effect. The Act states that "nothing in" Section 230(c)(1) - the provision immunizing providers of interactive computer services from liability for the speech of third parties - "shall be construed to impair or limit" three categories of civil claims and criminal prosecutions.
Next, FOSTA adds a definition to
Fourth, and finally, FOSTA amends Section 1595 of the same title to authorize state attorneys general to bring civil actions in parens patriae on behalf of residents of the state who have been "threatened or adversely affected by any person who violates"
II. Parties
The Woodhull Freedom Foundation ("Woodhull") is an advocacy and lobbying organization focused on "affirming and protecting the fundamental human right to sexual freedom." Declaration of Ricci Levy in Support of Motion for Preliminary Injunction ("R. Levy Decl.") ¶ 3 [Dkt. # 5-2]. It provides "support for the health, safety, and protection of sex workers, which include adult film performers, live webcam models, sexual wellness instructors, exotic dancers, escorts, and prostitutes."
Woodhull's "signature event" is the annual Sexual Freedom Summit, held in the Washington, D.C. area. See
The second named plaintiff, Human Rights Watch ("ITRW"), monitors potential violations of human rights around the world. Declaration of Dinah PoKempner ("PoKempner Decl.") ¶¶ 2-3 [Dkt. # 5-3]. As part of this mission, HRW does research and advocacy on behalf of sex workers, including in favor of decriminalization.
Plaintiffs also include two individuals. The first, Eric Koszyk, is a licensed massage therapist in Portland, Oregon, and the sole proprietor of Soothing Spirit Massage, a massage parlor that he has run for over a decade. See Declaration of Eric Koszyk (Koszyk Decl.) ¶¶ 1-2, 5 [Dkt. # 5-4], He uses Craigslist ads to attract over 90% of his customers, and finds Craigslist to be the "easiest and best way to reach clients" for his massage business.
Jesse Maley is a self-described advocate for "sex workers' health, safety, and human rights." Declaration of Jesse Maley (Maley Decl.) ¶ 1 [Dkt. # 5-5]. In her professional life, Maley goes by the name "Alex Andrews."
With this in mind, Maley co-founded Rate That Rescue in order to inform and educate sex workers about the nature and mission of various rescue organizations. Since its founding in 2015, the website has expanded to provide information on all manner of organizations "unrelated to ... sex work," but nevertheless relied on by sex workers.
Rate That Rescue relies on ratings and reviews added by unpaid, volunteer third parties. See
The Internet Archive ("the Archive") is an organization that archives internet webpages. Declaration of Brewster Kahle (Kahle Decl.) ¶¶ 4-7 [Dkt. # 5-6]. The Archive's mission is to preserve digital materials in order to prevent them from "disappearing into the past."
III. Procedural History
Plaintiffs filed this complaint on June 28, 2018. See Compl. 1 [Dkt. # 1]. The same day, they moved for a preliminary injunction pursuant to Fed. R. Civ. P. 65(a). See Mot. for Prelim. Inj. 1 [Dkt. # 5]. This Court set a hearing on July 19, 2018 for oral argument on the Motion. See 7/5/2018 Min. Order. Prior to oral argument, the Court twice extended briefing deadlines to afford the parties more time to develop their arguments. See 7/5/2018 Min. Order; 7/10/2018 Min. Order. On July 12, 2018, defendants filed their Opposition to Plaintiffs' Motion for Preliminary Injunction [Dkt. # 15] and Motion to Dismiss ("Mot. to Dismiss") [Dkt. # 16], and, on July 17, 2018, plaintiffs filed a Reply in support of their Motion for Preliminary Injunction ("Pls.' Reply") [Dkt. # 17] and, on July 29, 2018, an Opposition to defendants' Motion to Dismiss [Dkt. # 19].
IV. Standard of Review
Plaintiffs ask this Court to issue a preliminary injunction blocking the enforcement of FOSTA. The test for this "extraordinary remedy" is well known. Pursuing America's Greatness v. Fed. Election Comm'n ,
Defendants, for their part, assert that the case should be dismissed for want of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). In particular, defendants assert that plaintiffs have failed to satisfy the requirements of Article III standing to sue. It is, of course, black-letter law that the jurisdictional requirements of Article III must be present-before this Court may proceed to the merits. See Steel Co. v. Citizens for a Better Env't ,
Plaintiffs bear the burden of establishing, by preponderance of the evidence, that this Court has subject-matter jurisdiction over their claims. See Spokeo Inc. v. Robins , --- U.S. ----,
Defendants also move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), on the grounds that plaintiffs have failed to state a claim upon which relief can be granted. As with the Rule 12(b)(1) motion, for purposes of Rule 12(b)(6), this Court must "assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be
V. Discussion
Article III limits the jurisdiction of the federal courts to the adjudication of "Cases" and "Controversies" - that is, "cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process." Steel Co. ,
The "irreducible constitutional minimum" of Article III standing contains three elements. Spokeo ,
As the Supreme Court has explained, in order to establish injury in fact, "a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' " Id. at 1548 (quoting Lujan v. Defenders of Wildlife ,
The concept of imminence has been particularly important in the context of pre-enforcement challenges. The Supreme Court has held that "[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union ,
Our Circuit Court has stated that the question whether "a threat of prosecution adequate to satisfy the requirements of justiciability [exists] in any particular preenforcement challenge is a factual and case-specific one." Navegar, Inc. v. United States ,
Plaintiffs have the burden of establishing that their conduct is arguably "proscribed by [the challenged] statute," Susan B. Anthony List ,
A. Woodhull Freedom Foundation
What is it that plaintiffs plan to do? Woodhull's Motion for Preliminary Injunction cited its annual Sexual Freedom Summit, scheduled to take place in Virginia from August 2-5, as the primary basis for standing. That event has now taken place. The Summit, the Court is told, featured workshops on topics such as "Sex and Disability: Shifting the Focus to Disabled Sex Workers" and "Capitalism is not Consensual: Sex Workers and the Shaky Foundations of Consent." Levy Decl. ¶ 22. As part of the summit, Woodhull used social media, such as Facebook Live and Twitter, to reach individuals unable to attend in person. Id. ¶¶ 24-26. Livestreamed events included titles such as "Criminalization of Sex Work is a Human Rights Violation and a Labor Rights Concern," "FOSTA! How Congress Broke the Internet," and "Sexual Freedom in the Age of Trump." https://www.sexualfreedomsummit.org/.
Woodhull does not assert that, by livestreaming or promoting its workshops, or publishing biographies and contact information of sex workers, it intends to facilitate acts of prostitution by those sex workers. Compl. ¶¶ 74, 80-81. Nevertheless, Woodhull believes that federal, state, or local authorities could wield "the broad, vague, and undefined prohibitions contained in FOSTA" against it for having sponsored the Sexual Freedom Summit. Reply at 3. That is so because, under Woodhull's reading of the statute, FOSTA does not "suggest discernable limits for what might constitute promotion or facilitation of prostitution or trafficking." Mot. for Prelim. Inj. at 20.
Woodhull is particularly concerned with Section 2421A's use of the terms "promoting" and "facilitating." See, e.g. , 7/19/2018 Hr'g 6:16-22 (stating that Woodhull "provide[s] workshops for sex workers, again,
Unfortunately for Woodhull, plaintiffs marshal precious little authority in support of this construction. First, plaintiffs cite one case from the Northern District of Illinois and two Seventh Circuit opinions. They do so in support of the proposition that merely providing a platform for speech of someone who might commit illegal acts "does not satisfy the ordinary understanding of culpable assistance to a wrongdoer." Doe v. GTE Corp. ,
Then, in a footnote, plaintiffs cite the Oxford English Dictionary's definition of "promote" as "to advance or actively support," see Oxford English Dictionary (3d ed. 2007), and Black's Law Dictionary's definition of "to facilitate" as "to make the occurrence of (something) less difficult," see Black's Law Dictionary (10th ed. 2014). See Mot. for Prelim. Inj. at 24 n.9. Those definitions, however, do not shed light on Section 2421A as a whole. Instead, they strip "promote" and "facilitate" from the rest of Section 2421A(a), ignoring both the mens rea requirement and the language "prostitution of another person," which denotes specific unlawful acts. Plaintiffs' preferred method of statutory interpretation turns a blind eye to "the specific context in which that language is used, and the broader context of the statute as a whole." Nat'l Veterans Legal Servs. Program v. United Slates ,
Woodhull's construction of Section 2421A is flawed for additional reasons. First, Section 2421A mirrors an existing federal criminal law, the "Travel Act,"
Woodhull does not present the Court with any example of prosecution under the Travel Act that tracks its own theory of FOSTA's vast sweep. In United States v. Bennett , the Ninth Circuit affirmed the district court's jury instruction, in a prosecution under the Travel Act, that " 'to promote' or 'facilitate the promotion of' any illegal activity means to do an act that would cause the activity to be accomplished or to assist in the activity."
To be sure, plaintiffs attempt to distinguish Section 2421A from the Travel Act. They maintain that the Travel Act, unlike Section 2421A, proscribes specific acts of prostitution as defined in state law. Those state law violations are thus a predicate to a Travel Act offense. By contrast, plaintiffs say, FOSTA criminalizes "anything that promotes or facilitates prostitution, and not a specific crime." 7/19/2018 Hr'g Tr. 16:10-13. This is particularly problematic because prostitution "is an area where there has been significant advocacy, both by government entities and by private citizens." Id. at 16:14-16. As plaintiffs see it, that advocacy places them in FOSTA's crosshairs.
In pressing this argument, however, plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution - not the abstract topic of prostitution or sex work. See United Stales v. Williams ,
And that is to say nothing of Section 2421A's mens rea requirement, which only further narrows that provision's scope. Section 2421A will require the Government to show not simply that the defendant was aware of a potential result of the criminal offense, but instead that the defendant intended to "explicitly further[ ]" a specified unlawful act. See United States v. Brown ,
B. Human Rights Watch
The second plaintiff, Human Rights Watch, shares similar concerns to those of Woodhull. HRW advocates for sex worker rights and safety across the globe, and documents "abuses against sex workers in the United States, Lebanon, and South Africa." PoKempner Decl. ¶ 5. In addition, HRW has reported on "police searches of women for condoms as evidence of prostitution in four U.S. cities."
C. Jesse Maley a/k/a Alex Andrews
Next, Jesse Maley, a/k/a Alex Andrews, the creator and operator of ratethatrescue.org
Under Maley's reasoning, because providing housing or childcare services to sex workers "make[s] sex work easier," Rate That Rescue could be said to promote or facilitate prostitution. Reply at 4-5. For this reason, Maley fears that FOSTA's amendments to Section 230 - which clarify that immunity does not extend to conduct made unlawful by Section 2421A - could expose her to prosecution for the speech of third parties on Rate That Rescue. See
Put simply, Maley has failed to show that FOSTA's Section 230 amendments expose her to a credible threat of prosecution. That is so because Maley, on the current record, lacks the mens rea to violate any of the provisions specified in Section 230(e)(5). As I noted earlier, FOSTA amends Section 230 by adding Section 230(e)(5), which clarifies that Section 230(b) does not preclude liability under certain provisions of the U.S. Code. Section 230(e) mentions three provisions in particular: state law prosecutions for conduct banned by the newly-created Section 2421A ; state law prosecutions for conduct banned by
In managing Rate That Rescue, Maley cannot possibly be said to act "with the intent to promote or facilitate the prostitution of another person" in violation of Section 2421A. Maley's declaration concedes as much, repeatedly expressing concern that law enforcement could determine that "the user-generated content on Rate That Rescue promotes or facilitates prostitution,"
D. Eric Koszyk
Next, Eric Koszyk, a licensed therapist, maintains that he has standing to sue because Craigslist eliminated its Therapeutic Services section "as a direct response to FOSTA." Reply at 6. Koszyk represents that he cannot operate his business without Craigslist. That injury traces to FOSTA's enactment, and can be redressed by a ruling invalidating the Act and "leading" Craigslist to re-open its Therapeutic Services webpage. Reply at 6-7; Compl. ¶ 101; D'Amato Decl. ¶ 10.
Unfortunately for Koszyk, he cannot establish redressability under the relevant precedents. That is so because Koszyk has not established that a victory "will likely alleviate the particularized injury alleged." West v. Lynch ,
E. The Internet Archive
Finally, the Internet Archive "intentionally stores and displays a vast amount of both historical website data and third-party content that it has no 'practical ability to evaluate the legality of.' " Reply at 6 (quoting Kahle Decl. ¶ 14). Although the Internet Archive represents that it does not intend to promote sex trafficking or prostitution, it believes that the Section 230 amendments - and the ambiguity of their scope - may expose it to liability. Once again, however, there are no facts in the record supporting an inference of the mens rea standard necessary to peel back Section 230's protections. The Internet Archive's practice of sweeping up vast amounts of content from the web for indefinite storage, Kahle Decl. ¶ 7-8, and its attested practical inability to review the legality of that third-party content, id. ¶ 14, mean that that entity simply cannot meet the stringent mens rea standard required for liability under Sections 2421A, 1591, or 1595.
CONCLUSION
Thus, for all the above reasons, plaintiffs have each failed to adequately allege standing. As such, this Court lacks subject matter jurisdiction over their claims, Fed. R. Civ. P. 12(h)(3), and must GRANT defendants' Motion to Dismiss [Dkt. # 16] and DENY as moot plaintiffs' Motion for
Notes
Because sex trafficking of minors and sex trafficking "by force, fraud, or coercion" are unlawful in the United States, see
As FOSTA worked its way through the legislative process, the Department of Justice wrote to Rep. Bob Goodlatte, one of the Act's sponsors. See 164 Cong. Rec. H1297 (daily ed. Feb. 27, 2018). the letter began by raising some prudential concerns about the necessity of FOSTA and its effectiveness as a law enforcement tool. After making these policy-based complaints, the DOJ expressed concern that the retroactive application of FOSTA's amendment of Section 230 ran afoul of the Ex Post Facto Clause of the U.S. Constitution. In particular, the DOJ wrote, "insofar as [FOSTA] would 'impose[ ] a punishment for an act which was not punishable at the time it was committed' or 'impose[ ] additional punishment to that then prescribed,' " it would offend the Ex Post Facto clause.
As discussed below, plaintiffs requested a ruling from this Court on the motion for preliminary injunction prior to the Summit. Nevertheless, the Summit took place and, so far as the Court is aware, no prosecutions or civil suits have ensued against Woodhull for its sponsorship of the Summit.
Woodhull's President, Ricci Levy, avers that the organization has taken precautionary steps to avoid FOSTA liability. These prophylactic steps included refraining from publishing articles on the Woodhull website concerning FOSTA and its effect on sex workers. Levy Decl. ¶ 28. Those planned articles and blog posts would have advocated against the enforcement of FOSTA, and "educated [sex workers] about their rights, risks, and options under the new legal environment."
HRW also reports that "it is concerned that social media platforms and websites that host, disseminate, or allow users to spread [its] reports and advocacy materials" may be affected by Section 2421A. PoKempner Decl. ¶ 9.
Koszyk states in his declaration that "other licensed and certified massage therapists experienced similar problems with their advertisements on Craiglist." Koszyk Decl. ¶ 26.
In addition to her work for Rate That Rescue, Maley is the treasurer and a member of the board of directors of the Sex Workers Outreach Project USA ("SWOP USA"), the founder of the Orlando chapter of SWOP, and the founder of "SWOP Behind Bars." Id. ¶¶ 3, 7-8. SWOP USA is a "national social justice network" that advocates for the decriminalization of sex work; it operates a national hotline and has local chapters. Id. ¶¶ 3-6. SWOP Behind Bars has a more narrow focus, offering support to incarcerated sex workers by way of a support line, an electronic newsletter, and a re-entry guide for those leaving prison. Id. ¶¶ 8-10. Although SWOP is not a party to this case, Maley represents that SWOP has chosen not to purchase a mobile application out of concern for liability under FOSTA. Id. ¶¶ 32-39.
Maley's declaration records a 1993 conviction for "aggravated promotion of prostitution in violation of Texas law," based on her operation of an escort service in San Antonio. Id. ¶ 11. The court imposed ten years' probation; that probation period was terminated in 2001. Id. Maley represents that she "no longer operate[s] the escort service," and has not since her conviction. Id.
Some cases suggest a discrepancy in the standard of review between Rule 12(b)(1) and Rule 12(b)(6) motions, with the former requiring more searching scrutiny on the part of the Court than the latter. See, e.g., Grand Lodge of Fraternal Order of Police v. Ashcroft ,
Article III standing also helps to ensure that the plaintiff maintains "a 'personal stake in the outcome of the controversy.' " Susan B. Anthony List v. Driehaus ,
There is some confusion as to whether the Court may fold the Article III standing inquiry, in the context of a preliminary injunction, into its assessment of the likelihood of success on the merits. See, e.g., Kingman Park Civic Ass'n v. Gray ,
To be sure, I "cannot construe a criminal statute on the assumption that the Government will 'use it responsibly.' " McDonnell v. United Stales , --- U.S. ----,
Plaintiffs attempt to make much of the fact that Section 2421A(b)'s aggravated offense punishes conduct based on a scienter of recklessness. But the subsection (b) aggravated offense requires both intent as to the promotion or facilitation of particular acts of prostitution, as well as recklessness with respect to whether that conduct constitutes sex trafficking as defined in
In arguing that Section 2421A sweeps broadly, plaintiffs lean on statements made in legislative history. But it is beyond dispute that legislative history is useful only when the text itself is ambiguous. In this case, my "inquiry ceases" because "the statutory language is unambiguous and the statutory scheme is coherent and consistent." Sebelius v. Cloer ,