WOODHULL FREEDOM FOUNDATION, ET AL., APPELLANTS v. UNITED STATES OF AMERICA AND MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, APPELLEES
No. 22-5105
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2023 Decided July 7, 2023
Robert Corn-Revere argued the cause for appellants. With him on the briefs were Lawrence G. Walters, Adam S. Sieff, Caesar Kalinowski IV, David Greene, Aaron Mackey, Corynne McSherry, and Daphne Keller.
Christopher T. Bavitz was on the brief for amicus curiae Transgender Law Center in support of appellants.
Lauren Gallo White and Brian M. Willen were on the brief for amicus curiae Center for Democracy & Technology in support of appellants.
Catherine Sevcenko was on the brief for amici curiae COYOTE-RI, et al. in support of appellants.
Rebecca Cleary was on the brief for amici curiae Decriminalize Sex Work, et al. in support of appellants.
Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Mark B. Stern, Attorney.
Before: MILLETT and WALKER, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
FOSTA also subjects the providers of those computer services to liability in civil and state-law criminal actions for any third-party content they publish that violates
Finally, FOSTA adds a new definitional provision to the Trafficking Act,
The Woodhull Freedom Foundation and four other plaintiffs challenged the constitutionality of FOSTA on numerous grounds, but the district court upheld FOSTA in full.
We affirm. Neither Section 2421A of FOSTA nor FOSTA‘s amendments to the Trafficking Act are overbroad or unconstitutionally vague. FOSTA‘s clarification that Section 230 withholds immunity for violations of federal sex trafficking laws comports with the First Amendment. And the district court correctly dismissed the challenge to Section 230(e)(5)‘s retroactive application.
I
A
For decades, Congress has worked to protect minors online while рromoting free speech over the Internet. In 1996, Congress enacted the Communications Decency Act, Pub. L. No. 104-104, Title V, 110 Stat. 56, 133–143 (codified in various Sections of 18 and 47 of the United States Code), which prohibited the online transmission of obscene and indecent speech. See
As relevant here, the Communications Decency Act had twin aims. On the one hand, it sought to protect minors by shielding them from exposure to sexually explicit materials posted online. See Woodhull Freedom Found. v. United States, 948 F.3d 363, 367 (D.C. Cir. 2020) (”Woodhull II“). The Supreme Court ultimately struck down that portion of the Act on overbreadth grounds because it “lack[ed] the precision that the First Amendment requires when a statute regulates the content of speech.” Reno v. ACLU, 521 U.S. at 874.
At the
Congress, though, limited Section 230‘s grant of immunity to conduct that does not independently violate federal criminal law.
Nevertheless, when sex-trafficking survivors attempted to sue the publishers of online classified advertising that allegedly helped their traffickers avoid detection, the lawsuits failed because courts found the publishers to be immune from liability under Section 230 for the third-party speech posted on their sites. Sеe Woodhull II, 948 F.3d at 367–368 (detailing Section 230‘s role in preventing lawsuits by survivors of sex trafficking).
B
Congress enacted FOSTA to strengthen protections against online sex trafficking. In doing so, Congress underscored that Section 230 of the Communications Decency Act “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution” or to “websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims[.]”
As relevant here, FOSTA changed the law in four ways.
First, FOSTA amended Section 1591 of the Trafficking Act to define what it means to “participat[e] in a venture.”
knowing, or, except where the act *** is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, [or] coercion *** will be used to cause the person to engage in a commercial sex act, or that the person [is under] the age of 18 and will be caused to engage in a commercial sex act[.]
FOSTA clarified Section 1591(a)(2)‘s reach by defining “participation in a venture” as “knowingly assisting, supporting,
Whoever knowingly— * * * benefits, financially or by receiving anything of value, from [knowingly assisting, supporting, or facilitating a violаtion of subsection (a)(1)] knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination
of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
See
Second, FOSTA amended Section 1595 of Title 18 by authorizing States’ attorneys general to bring civil actions against those who violate Section 1591.
Third, FOSTA created Section 2421A of Title 18, a brand-new felony offense. In relevant part, that provision states:
(a) In General.—Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operatеs an interactive computer service (as such term is defined in * * *
47 U.S.C. 230(f) )[], or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.(b) Aggravated Violation.—Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in * * *
47 U.S.C. 230(f) )[], or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person and—
- promotes or facilitates the prostitution of 5 or more persons; or
- acts in reckless disregard of the fact that such conduct contributed to sex trafficking, in violation of 1591(a),
shall be fined under this title, imprisoned for not more than 25 years, or both.
As used in Section 2421A, “interactive computer service[s]” are onlinе platforms that “provide[] or enable[] computer access by multiple users to a computer server[.]”
Section 2421A(a) makes it a felony, punishable by up to ten years of imprisonment, to “own[], manage[], or operate[] an interactive computer service, * * * or conspire[] or attempt[] to do so” if done “with the intent to promote or facilitate the prostitution of another person[.]”
Section 2421A(b) separately creates an aggravated offense, punishable by up to 25 years of imprisonment, for anyone who both violates Section 2421A(a) and also “promotes or facilitates the prostitution of 5 or more persons” or “acts in reckless disregard of the fact that such conduct contributed to sex trafficking” in violation of Section 1591(a) of the Trafficking Act.
FOSTA adds that its amendments to Section 230 “shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after [FOSTA‘s] enactment.”
C
In response to FOSTA‘s enactment, several online platforms removed content and deleted entire sections of their websites. Woodhull II, 948 F.3d at 368–369. For example, two days after Congress passed the Act, Craigslist eliminated all personal ads, including those in non-sexual categories, and named FOSTA as the reason for doing so. Other websites followed suit, and many blamed the Act‘s broad criminal prohibitions and severe penalties. See COYOTE-RI, et al., Amicus Br. A. 15 (“FOSTA changes [liability] in a way that makes sites operated by smаll organizations * * * much riskier to operate. [The Act] essentially says that if we facilitate the prostitution of another person we‘re liable. * * * [T]he problem is that ‘or facilitate’ is ill-defined.“).
The plaintiffs in this case similarly allege that FOSTA has chilled or halted their constitutionally protected speech. Plaintiff Woodhull Freedom Foundation is an advocacy organization that supports the health, safety, and protection of sex workers. Because of the Act, Woodhull has censored its publication of information that might, in its view, be considered to promote or facilitate sex work.
Plaintiff Alex Andrews is the cofounder and organizer of several advocacy groups for sex workers. Andrews created Rate That Rescue, a website that allows sex workers to report and warn others about violence and other harmful behavior by clients. Rate That Rescue also shares information about products and services that sex workers can use, including online payment processors and contact information for rescue organizations. See Woodhull II, 948 F.3d at 369. Because Rate That Rescue has thousands of users, and because Andrews has alleged that she intends to use Rate That Rescue to host discussions that in her view “facilitate” sex trafficking, Andrews‘s conduct is arguably proscribed by FOSTA. Id. at 372. In addition, an organization of which Andrews is a board member canceled its acquisition and development of an electronic tool for sex workers to report violent and harmful behavior because of FOSTA.
Plaintiff Human Rights Watch is an advocacy organization that, among other things, advocates for the human rights of sex workers. In so doing, Human Rights Watch chronicles rights violations committed against sex workers and describes police tactics targeted at their work. Human Rights Watch alleges that the Act endangers its human rights advocacy work, especially its documentation of abuses аgainst sex workers.
Plaintiff the Internet Archive captures, displays, and stores all types of historical website data and third-party material. It fears prosecution for its preservation of web pages that may later be found to violate FOSTA, and for the third-party material it hosts.
Finally, plaintiff Eric Koszyk is a licensed massage therapist. Before FOSTA, Koszyk advertised his business on Craigslist.
II
A
In June 2018, Woodhull Freedom Foundation, Human Rights Watch, the Internet Archive, Andrews, and Koszyk (collectively, “Woodhull“) filed a pre-enforcement facial challenge to FOSTA. Woodhull mounts several First Amendment attacks on the Act, including that it is an overbroad, content-based restriction on speech that fails strict scrutiny. Woodhull also alleges that the Act is unconstitutionally vague in violation of the Fifth Amendment and that it imposеs an unconstitutional retroactive criminal penalty in violation of the Ex Post Facto Clause of Article I, Section 9 of the Constitution.
The district court originally dismissed the case and denied Woodhull‘s preliminary injunction for lack of standing. Woodhull Freedom Found. v. United States, 334 F. Supp. 3d 185, 203 (D.D.C. 2018) (”Woodhull I“), rev‘d and remanded, 948 F.3d 363 (D.C. Cir. 2020).
This court reversed, holding that at least some plaintiffs had established standing, and remanded the case for further proceedings. See Woodhull II, 948 F.3d at 371–374. We held that, at a minimum, Andrews had standing because she “operates a website that allows sex workers to share information” that arguably violates Section 2421A. Id. at 372. The court noted that the Act could be read one of two ways. First, because Section 2421A does not define “promote” or “facilitate,” and the terms are listed disjunctively, the Act could separately proscribe promoting prostitution and facilitating prostitution. Id. Given that the ordinary meaning of “facilitate” is “to make easier,” this court concluded that FOSTA may criminalize any behavior that makes unlawful sex work easier. See id. (quoting United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir. 1985)) (further citation omitted). On the other hand, FOSTA could be read to use “facilitate” in its criminal law context, which would outlaw only conduct that aids and abets unlawful sex work. Id.
Because Andrews‘s website allows sex workers to share information about payment processors, the court reasoned that it faced regulation under either reading of the statute. Woodhull II, 948 F.3d at 372–373. For that reason, this court held that Andrews had standing to bring a pre-enforcement First Amendment challenge to FOSTA.
This court also held that Koszyk had standing because Craigslist‘s removal of his advertisements is traceable to FOSTA. Woodhull II, 948 F.3d at 374. In addition, his injury is redressable because a favorable ruling invalidating the Act would likely result in the reinstatement of personalized ads. Id. Because Andrews and Koszyk established standing, the court did not evaluate whether the three institutional plaintiffs also had standing. Id. at 371.2
B
On remand, the district court granted the Government‘s motion for summary judgment and denied Woodhull‘s cross-motion, holding that the Act is not unconstitutional under the First or Fifth Amendments. Woodhull Freedom Found. v. United States, No. CV 18-1552 (RJL), 2022 WL 910600, at *1
(D.D.C. March 29, 2022) (”Woodhull III“). The district court
As for the amendment of Section 230, the district court found no constitutional basis for the immunity Woodhull claimed, and it rejected Woodhull‘s challenge based on content and viewpoint discrimination on the ground that FOSTA does not regulate speech. Woodhull III, 2022 WL 910600, at *9. Finally, the district court dismissed Woodhull‘s Ex Post Facto Clause challenge to FOSTA‘s effective date. Id. at *11. That provision allows civil liability under Section 1595 of the Trafficking Act and state criminal liability against online platforms for conduct that violates FOSTA and applies even if the conduct occurred before FOSTA‘s enactment.
III
Woodhull timely filed a notice of appeal. We have jurisdiction under
IV
Woodhull levels multiple First and Fifth Amendment challenges to FOSTA. None of them succeeds.
A
Woodhull argues that FOSTA‘s amendment of Section 1591(e)(4) of the Trafficking Act to define “participation in a venture” is unconstitutionally overbroad under the First Amendment. We disagree.
“[A] statute is facially invalid [under the overbreadth doctrine] if it prohibits a substantial amount оf protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008). Invalidation for overbreadth is “strong medicine” that is not to be “casually employed.” Id. at 293 (citations and quotation marks omitted). Accordingly, courts “vigorously enforce[]” the requirement that any “overbreadth be substantial, not only in an absolute sense, but also relative to the statute‘s plainly legitimate sweep.” Id. at 292 (citations omitted); see United States v. Stevens, 559 U.S. 460, 473 (2010); Initiative & Referendum Inst. v. United States Postal Serv., 417 F.3d 1299, 1312-1313 (D.C. Cir. 2005).
To determine if Section 1591(e)(4) is overbroad, we must first construe the provision‘s meaning, for “it is impossible to determine whether a statute reaches too far without first knowing what the statute
Recall that Section 1591(a) outlaws knowingly benefiting from “participation in a venture” that one knows has engaged in sex trafficking.
Standing alone, verbs like “assisting” and “facilitating” can be broad in their reach. But we read statutory terms in context, not in isolation. See Williams, 553 U.S. at 294. When read together, with each word drawing meaning from the other, the string of verbs “assisting, supporting, or facilitating” is most naturally understood to refer to aiding and abetting sex trafficking. After all, the word assist means “to lend aid; to help.” See Assist, WEBSTER‘S NEW INTERNATIONAL DICTIONARY 167 (2d ed. 1954) (def. 2); see also OXFORD ENGLISH DICTIONARY 715 (2d ed. 1989) (def. 1) (“An act of assistance; aid, help.“); AMERICAN HERITAGE DICTIONARY 108 (5th ed. 2018) (def. 1) (“To give help or support to[.]“). Similarly, “support” commonly means “assist” or “help[.]” Support, MERRIAM-WEBSTER DICTIONARY 1256 (11th ed. 2014) (def. 2 b (1)); OXFORD ENGLISH DICTIONARY 257 (2d ed. 1989) (def. 1. a.) ([A]ssistance[.]“).
In addition, “assist” is commonly used by Congress as part of aiding-and-abetting language. See, e.g.,
Given the company it keeps in Section 1591(e)(4), “facilitating” similarly connotes helping to make sex trafficking happen—that is, aiding and abetting the offense. See Facilitation, BLACK‘S LAW DICTIONARY (10th ed. 2014) (def. 2) (“The act or an instance of aiding or helping; esp., in criminal law, the act of making it easier for another person to commit a crime.“).
The Supreme Court has come to the same conclusion. Most recently, the Court explаined that “[f]acilitation—also called aiding and abetting—is the provision of assistance to a wrongdoer with the intent to further an offense‘s commission.” Hansen, slip op., at 6. Likewise, in Abuelhawa v. United States, 556 U.S. 816 (2009), the statute at issue made it “a felony ‘to use any communication facility in committing or in causing or facilitating’ certain felonies prohibited by” the Controlled Substances Act, id. at 818
Likewise, here, Section 1591(e)(4) uses “facilitates” to describe a criminal act distinct from a direct violation of the law. Compare
In sum, reading Section 1591(e)(4)‘s definition of “participation in a venture” in light of its context and placement in the statutory scheme, the definition permissibly prohibits aiding and abetting a venture that one knows to be engaged in sex trafficking while knowingly benefiting from that venture. We thus hold that the provision does not have the expansive scope that Woodhull fears, but instead, proscribes only speech that falls within the traditional bounds of aiding-and-abetting liability, which is not a form of speech protected by the First Amendment. See Stevens, 559 U.S. at 468 (First Amendment allows restrictions on the content of “speech integral to criminal conduct“) (citations omitted); National Org. for Women v. Operation Rescue, 37 F.3d 646, 656 (D.C. Cir. 1994) (“That ‘aiding and abetting’ of an illegal act may be carried out through speech is no bar to its illegality.“); see also Hansen, slip op. at 17 (“Section 1324(a)(1)(A)(iv) reaches no further than the purposeful * * * facilitation of specific acts known to violate federal law. So understood, the statute does not ‘prohibi[t] a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep.‘“) (quoting Williams, 553 U.S. at 292).
B
Woodhull also argues that Sections 2421A(a) and (b)(1) of FOSTA are overbroad because the phrase “promote or facilitate” has a variety of meanings, many of which include protected speech, such as general advocacy and the provision of safety and health information. The Government, on the other hand, contends that “promote or facilitate” should be read to mean aid or abet. The Government is correct. Sections 2421A(a) and (b)(1) of FOSTA are not unconstitutionally overbroad under the First Amendment.
1
Start with the statutory text. Section 2421A(a) provides:
Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in * * *
47 U.S.C. § 230(f) )[], or conspires or attempts to dо so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.
Section 2421A(a)‘s mens rea is clear: An intent to promote or facilitate the prostitution of another person. As we have already held, “promote” and “facilitate,” when considered in isolation, “are susceptible
Section 2421A is a criminal statute and, as the district court noted, “promoting prostitution” has a distinct meaning in criminal law. Woodhull III, 2022 WL 910600, at *6. For example, Black‘s Law Dictionary defines “promoting prostitution” as “[t]he act or offense of recruiting a prostitute, finding a place of business for a prostitute, or soliciting customers for a prostitute.” Promoting Prostitution, BLACK‘S LAW DICTIONARY (10th ed. 2014).3
That specialized meaning is important because, “when Congress ‘borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumаbly knows and adopts the cluster of ideas that were attached to each borrowed word.‘” Hansen, slip op. at 9–10 (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). So when read within its traditional criminal law context, Section 2421A(a)‘s prohibition on promoting the prostitution of another person proscribes owning, managing, or operating an online platform with the intent to recruit, solicit,
or find a place of business for a sex worker—that is, to aid and abet prostitution.4
While “facilitating prostitution” has not been so defined, the context in which it is used in Section 2421A(a) similarly narrows its reach to additional forms of aiding and abetting that go beyond the recruitment, solicitation, or finding of a place of business, which “promote” already covers.
As a preliminary matter, the Supreme Court explained in Hansen that the word “facilitate” is a synonym for aiding and abetting when that word is used in the context of criminal statutes. See Hansen, slip op. at 6 (“Facilitation—also called aiding and abetting[.]“). The Court further observed that facilitation is a “longstanding criminal theor[y] targeting those who support the crimes of a principal wrongdoer.” Id. So it seems clear that, in this statute, “facilitating prostitution” is most naturally read to mean aiding and abetting prostitution.
Notably, elsewhere in FOSTA, “facilitate” appears in the company of other aiding-and-abetting verbs, suggesting that
What is more, the phrase “promote or facilitate” is often used as the mens rea for accomplice liability in the Model Penal Code and state aiding-and-abetting statutes. For example, the Model Penal Codе defines an accomplice as a person who aids or agrees with another in planning or committing a crime “with the purpose of promoting or facilitating the commission of the offense[.]”
State aiding-and-abetting statutes mirror this language by defining aiding and abetting as engaging in a circumscribed act with the purpose of “promoting or facilitating” a crime. See, e.g.,
2
In addition to employing “promotes or facilitates” in an aiding-and-abetting context, Section 2421A(a) uses a very specific criminal object that itself narrows the reach of “facilitates.” Congress, after all, did not use “facilitate” or “facilitate prostitution” in isolation. Instead, the statute outlaws “facilitat[ing] * * * the prostitution of another person.”
Section 2421A(a)‘s object—“the prostitution of another person“—also focuses the otherwise potentially broad reach of “facilitates.”
This understanding of “facilitate the prostitution of another person” likewise parallels the definition of “promote prostitution” employed in the Model Penal Code and state statutes, adopting it as actions that “encourag[e], induc[e] or otherwise purposely caus[e] another to become or remain a prostitute[.]”
We therefore hold that Section 2421A(a)‘s mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution. Instead, it reaches a person‘s intent to aid or abet the prostitution of another person. That reading also makes sense in a statute that targets prostitution alongside sex trafficking, and seeks to eradicate the use of online platforms when they contribute to sex work that is compelled by “force, fraud, and coercion[.]”
Undoubtedly, the term “facilitate” could be read more broadly. See Woodhull II, 948 F.3d at 372. But nothing in Section 2421A(a) compels us to read “facilitate” that way. Doubly so when a more expansive reading could raise grave constitutional concerns. See Judicial Watch, Inc. v. United States Secret Serv., 726 F.3d 208, 226 (D.C. Cir. 2013) (canon of constitutional
3
Woodhull also argues that Section 2421A(b)(1) is substantially overbroad, just like Section 2421A(a). Because we have already concluded that the provision‘s mens rea clause, which is identical to that in subsection (a), can be read narrowly to fall within constitutional bounds, see Sections IV.B.1–2., supra, that challenge fails.
C
Woodhull separately argues that certain portions of FOSTA are void for vagueness. In particular, Woodhull objects to Section 1591(e)(4)‘s definition of “participation in a venture,” Section 2421A‘s mens rea clause, Section 2421A(b)(2)‘s aggravated offense provision, and Section 230(e)(5)(A)‘s scienter requirement. All of Woodhull‘s challenges fail.
“Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment.” Williams, 553 U.S. at 304. A law is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Id. “What renders a statute
First, there is no relevant indeterminacy in Section 1591(e)(4)‘s definition of “participation in a venture[,]” or in Section 2421A‘s mens rea clause. Instead, as explained above, сonventional tools of statutory construction show that both provisions capture traditional aiding-and-abetting liability. See Bronstein, 849 F.3d at 1106 (“A statute‘s vagueness is either susceptible to judicial construction or is void for vagueness based on the application of traditional rules for statutory interpretation.“). That long-settled standard for criminal liability puts persons on fair notice that aiding and abetting a group engaged in sex trafficking or acting with the intent to aid and abet the prostitution of another person is prohibited. See Hansen, slip op. at 6 (concept of facilitation is a “longstanding criminal theor[y]“). Nothing in Section 1591(e)(4)‘s definition of participating in a venture or in Section 2421A‘s mens rea depends on the type of subjective or wholly discretionary or indiscernible judgments that courts have struck down as unconstitutionally vague. See Williams, 553 U.S. at 306 (terms like “annoying” or “indecent” lack sufficient objective content to provide fair notice).
Second, Woodhull аrgues that Section 2421A(b)(2) is unconstitutionally vague because it imposes liability on anyone who acts in “reckless disregard” of the fact that their conduct “contributed to sex trafficking”
For one, “reckless disregard” is a commonly used mens rea with a settled criminal law meaning. See Borden v. United States, 141 S. Ct. 1817, 1824 (2021)
In addition, while “contributes to” sex trafficking can range from helping to bring about sex trafficking to aiding and abetting sex trafficking, the breadth of the standard does not make it vague. See Williams, 553 U.S. at 304; see also Pennsylvania Dep‘t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“[T]he fact that a statute can be ‘applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.‘“) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985)). Nor does its operation turn on wholly discretionary and unpredictable judgments. See Contribute, AMERICAN HERITAGE DICTIONARY 399 (5th ed. 2016) (def. 2) (“[T]o help bring about a result; act as a factor[.]“); WEBSTER‘S NEW WORLD 324 (5th ed. 2014) (def. 3) (“[T]o give or furnish (knowledge, ideas, etc.)—to have a share in bringing about (a result); be partly responsible for[.]“); Williams, 553 U.S. at 304. As such, the provision is not unconstitutionally vague.
Third, Section 230(e)(5)(A)‘s scienter requirement likewise passes constitutional muster. Recall that Section 1595 of the Trafficking Act allows survivors of sex trafficking to bring a civil action against a perpetrator or anyone who “knowingly benefits, * * * from participation in a venture which that person knew or should have known has engaged in [sex trafficking].”
In FOSTA, Congress clarified that online platforms sued in civil actions under Section 1595 do not enjoy Section 230 immunity “if the conduct underlying the claim constitutes a violation of section 1591“—that is, conduct that involves either directly engaging in sex trafficking or knowingly benefiting from participatiоn in a venture that one knows has engaged in sex trafficking,
While both Sections 1591 and 1595 prohibit “participation in a venture” that has engaged in sex trafficking, Section 1595‘s civil liability provision does not explicitly specify a mens rea for “participation in a venture[.]” While the statutory text is not explicit and a few initial rulings were contradictory, court rulings are now consistent that Section 1595 requires an actual knowledge mens rea for participation in a venture.6
Section 230(e)(5)(A) suffers from no such problem. Principles of statutory construction have proven up to the task of interpreting that provision. And whatever mens rea is required, it does not turn on subjective, unascertainable, or wholly discretionary judgments, or on the absence of any standard at all. See Williams, 553 U.S. at 304. That suffices to foreclose Woodhull‘s vagueness challenge. See Bronstein, 849 F.3d at 1107 (“[A] statutory term is not rendered unconstitutionally vague because it ‘do[es] not mean the same thing to all people, all the time, everywhere.‘“) (quoting Roth v. United States, 354 U.S. 476, 491 (1957)); see also United States v. Kernell, 667 F.3d 746, 754 (6th Cir. 2012) (“[T]he fact that different courts have interpreted a statute differently does not make the statute vague—if that were true, a circuit split over the interpretation of a criminal statute would by definition render the statute unconstitutional.“).
V
Woodhull also argues that Section 4(b) of FOSTA runs afoul of the Constitution‘s prohibition of ex post facto laws. See
Woodhull‘s argument does not get out of the starting gate. The only persons who could even arguably violate the Ex Post Facto Clause by prosecuting the state-law actions authorized by Section 230(e)(5)(C) are state оfficials and private parties. None of the federal defendants whom Woodhull has sued have any ability or authority to bring the state-law actions that Section 230(e)(5)(C) authorizes. So there is no possible conduct by these federal defendants that a court could declare unconstitutional or enjoin as unlawful on ex post facto grounds. Nor does the complaint
Usually, dismissal with prejudice for failure to name a proper defendant is granted only if “the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (quoting Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962)). But Woodhull never asked the district court (or this court) for the opportunity to amend the complaint and add a proper defendant for the ex post facto claim. With Woodhull having made no effort to substitute in a proper party, the district court did not abuse its discretion in dismissing the ex post facto claim without allowing leave to amend. See Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996) (“[W]e review district court decisions under Rule 15(a) for abuse of discretion.“).
VI
Woodhull brings an additional challenge to the Act‘s amendment of Section 230. Prior to FOSTA, Section 230 withheld immunity for online platform owners, managers, and operators if the content posted on the platform violated federal criminal law. See
Woodhull argues that selective withdrawal of Section 230 immunity only for those who speak on disfavored subjects like the promotion of prostitution and sex trafficking violates the First Amendment. Once again, Woodhull‘s argument fails.
To start, FOSTA does not criminalize promoting prostitution broadly. It only punishes aiding or abetting the “prostitution of another person,” which has a much narrower reach. See Section IV.B., supra.
As for Woodhull‘s argument that Section 230(e)(5) selectively withdraws immunity on the basis of speech‘s content or viewpoint, that misunderstands the law. Sections 230(e)(5)(A)–(B) withhold immunity only for content that violates the federal criminal prohibition on sex trafficking in Section 1591, and Woodhull makes no argument that Section 1591 itself is unconstitutional under the First Amendment or otherwise. Neither does Woodhull explain how denying immunity for speech integral to сriminal conduct would trench on the First Amendment.
Nor did the amendment make a material or selective change in the scope of immunity. Section 230‘s text has always withheld immunity for speech that violates federal criminal law.
Congress was explicit in FOSTA that Section 230‘s immunity provision “was never intended to provide legal protection” to websites that unlawfully promote prostitution or assist traffickers, and accordingly detеrmined that
Nothing in the First Amendment required Congress to confer Section 230 immunity on speech that violates federal criminal laws in the first place, and nothing in the First Amendment ossifies such immunity once granted against any later clarification.
VII
In addition to its overbreadth and vagueness challenges, Woodhull asserts that, as regulations of speech, Sections 2421A and 1591(e)(4) do not survive strict scrutiny. But those Sections, as we have interpreted them in response to the challenges raised, only cover speech integral to criminal conduct, which does not receive First Amendment protection. See Hansen, slip op. at 18 (“Speech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected.“); Stevens, 559 U.S. at 468 (First Amendment allows restrictions on the content of “speech integral to
VIII
For all of the foregoing reasons, the district court‘s judgment is affirmed.
So ordered.